Question

We are trying to determine whether our organization falls under the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard. I know it applies to companies with 100 or more employees, and if it applies, we must have employees either vaccinate for COVID-19 or require weekly COVID-19 testing. How does OSHA define having 100 employees? How does it apply if you have multiple locations? Additionally, we have a number of part-time and seasonal employees. How does the employee calculation impact these types of employees?

Answer

Many employers are trying to quickly determine if they are subject to the recent COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The rules for calculating the 100 employee threshold are rather broad and inclusive, and generally include all employees employed by a single entity, even if some employees work in other, multiple, or off-site locations. Remote employees are included in the headcount for ETS purposes (though employees who exclusively work from home are not subject to the ETS’s requirements). Additionally, part-time, seasonal, temporary, and minor employees are also included in the employee calculation.

For reference, OSHA has issued FAQ guidance on the ETS which includes the following information as pertinent to your inquiry:

“2.A.2. Is the count based on 100 employees for the entire business or 100 employees per individual location?

The count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.

2.A.4. Are part-time employees included in the 100-employee threshold?

Yes. Part-time employees do count towards the total number of employees. For example, a company with 75 part-time employees and 25 full-time employees would be considered to have 100 employees and would be within the scope of this standard. Independent contractors do not count towards the total number of employees.

2.A.8. How will temporary and seasonal workers be addressed in the employee count?

Temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect. For more information, see FAQ 2.A.7. “How are employees from staffing agencies counted?” and FAQ 2.C. “How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers?””

For related entities and whether such entities need to combine its employees for ETS applicability purposes, the ETS under section VI., B., II. states that “two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.”

Note that even if an employer may not have 100 employees as of the effective date of the ETS (November 5, 2021), if and when an employer hits the 100 employee threshold, the ETS would apply from there on out throughout the effective duration of the standard. This is true even if the employer subsequently falls below 100 employees. Indeed, question 2.C. of the FAQ guidance provides the following as reference:

“2.C. How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers?

The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS.”

For additional information, please visit OSHA’s website on the ETS which includes links to a webinar, additional fact sheets, and policy templates and other information. Employers are encouraged to consult with legal counsel for specific legal advice on whether they may be subject to the ETS.

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