Compliance with the ETS: Initial Determination of Employee Threshold

In order to assist our clients in preparing for the new deadlines for compliance with OSHA’s ETS, this update addresses the preliminary issue of how an employer should calculate whether they meet the 100 employee threshold.    The ETS provides some information about how to calculate that number.

1. All employees are counted, including full time, part-time, seasonal, and temporary;
2. Remote workers are counted (even though they may not be subject to either the testing or vaccination requirement);
3. Employees (seasonal or otherwise) employed primarily by a staffing agency are counted by that agency, not the temporary employer to whom they are assigned;
4. Independent contractors are not counted;
5. If an employer (a single corporate entity) has multiple locations, all employees at all locations are counted;
6. Two or more related entities may be regarded as a single employer if they handle safety matters as one company, in which case all of the employees of the related entities are counted;
7. Minors are counted, even if they need parental consent to be vaccinated;
8. An employer is not to consider vaccination status in determining the count – even previously vaccinated employees are counted in the total.

The original date for determination of whether the employer met the threshold was November 5.  That date appears to still be applicable.  That means that an employer must look back to November 5 to count whether they had the requisite number as of that date.  If the employer met the threshold as of the effective date, the ETS applies for its duration.  OSHA has also stated that once an employer falls under the ETS because of the number of employees, the ETS 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.

Stay tuned for ongoing additional information about compliance with the ETS.