On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firmwide or companywide count).
The ETS provides specific guidance to help employers determine how many employees they have for the purpose of complying with the vaccination and testing standard. This post provides an overview of specific guidance offered for:
Employers should familiarize themselves with the ETS and use its guidance to determine the number of employees. Nonexempt employers with 100 or more employees should prepare to comply with ETS requirements by the deadlines mentioned above.
The ETS applies to all private employers with a total of 100 employees at any time while the ETS is in effect. This standard generally covers employers in all workplaces that are under OSHA’s authority and jurisdiction. This includes divers industries such as:
When determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of vaccination status or where they preform their work. Employers must include part-time employees in their employee count but can exclude independent contractors.
The ETS addresses a number of specific scenarios to help employers in diverse circumstances determine whether they meet the 100-employee threshold.
Employers must count all employees at all their U.S. locations for the purposes of compliance with the ETS. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes. In these cases, franchisors would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.
In joint employment situations, two or more related entities may be regarded as a single employer for Occupational Safety and Health Act (OSH Act) purposes if they handle safety matters as one company. In there cases, the combined number of employees of all joint-employment entities constitutes a single employee workforce for purposes of the ETS.
When employees of a staffing agency are placed at a host employer location, only the staffing agency will count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. Normally, the staffing agency and the host employer would share responsibility for these workers under the OSH Act; however, with this ETS, OSHA has set the threshold for coverage based primarily on the administrative capacity to protect workers as quickly as possible. Since staffing agencies would typically handle administrative matters for these workers, OSHA has designated they would determine their 100-employee threshold by counting these leased employees.
Host employers, however, would still be covered by this ETS if they have 100 or more employees, not counting leased employees. For enforcement purposes, traditional joint employer principles would apply where both employers are covered by the ETS.
On a typical multiemployer worksite such as a construction site, each company represented—the host employer, the general contractor and each subcontractor—would only need to count its own employees, and the host employer and general contractor would not need to count the total number of workers at each site. However, each employer must count the total number of workers it employs regardless of where they report for work on a particular day. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under this ETS even if it does not have 100 or more employees present at any one worksite.
Covering the employees of larger employers at multiemployer worksites would mitigate the spread of COVID-19 at the workplace even where not all employees are covered by this ETS because fully vaccinated employees (or unvaccinated employees wearing face coverings and submitting to weekly testing) would be less likely to spread the virus to unvaccinated workers at the site who are not covered by this ETS.
Determining whether an employer is covered by the ETS should be made separately from whether individual employees are covered by the ETS requirements. The ETS offers the following examples:
The ETS applies to all employers who have the requisite number of employees at any time this ETS is in effect. The initial determination of whether an employer has 100 or more employees must take place as of the standard’s effective date: Nov. 5, 2021. If the employer has 100 or more employees on Nov. 5, 2021, the ETS applies for the duration of the standard.
If the employer has fewer than 100 employees on Nov. 5, 2021, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and reaches the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements on the date the employer reaches the threshold.
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. OSHA justifies covering employers that fluctuate above and below the 100-employee threshold during the term of the ETS because those employers will typically have already developed systems and capabilities for compliance. As a result, a decrease in the number of employees is unlikely to make them less capable of compliance.
For example, an employer with 103 employees on the effective date of the standard but then loses four employees the next month would continue to be subject to the ETS.
There are two employer exemptions to the ETS, namely:
However, OSHA’s intent was to leave no coverage gaps between the healthcare ETS and this ETS. Therefore, it will be necessary for employers with employees covered by the health care ETS to determine if they also have employees covered by the vaccine and testing ETS. For example, a healthcare employer with more than 100 employees that has nonhospital ambulatory care facilities that are exempt under the health care ETS (for nonhospital ambulatory care settings where all nonemployees are screened prior to entry and those with suspected or confirmed COVID-19 are prohibited from entry) would be required to protect the employees in those ambulatory care facilities under this ETS.
Similarly, a retail pharmacy chain that operates a series of ambulatory care clinics embedded in its stores, where those embedded clinics are the only areas in the store that are covered under the health care ETS (see 29 CFR 1910.502(a)(3)(i)), would have to ensure that the remainder of its employees in other parts of its stores are protected under this ETS if the company has 100 or more employees companywide, including those covered under the health care ETS.
Even if the ETS applies to a particular employer, the ETS requirements do not apply to employees:
Working From Home and Working Alone
OSHA intends these provisions to exempt workplace settings where workers do not interact indoors with other individuals and exempt work performed in the employee’s home regardless of whether other individuals may be present in the home. This is because OSHA has determined that the provisions of this ETS are not necessary to protect employees from COVID-19 when they are working alone or when they are working from home. These two provisions may overlap in some cases but also can apply to slightly different situations. Workplaces where other individuals are not present would apply to work in a solitary location, such as a research station where only one person (the employee) is present at a time. In that situation, the employee is not exposed to any potentially infectious individuals at work.
Working Exclusively Outdoors
Even if a particular employer is covered by the standard, the requirements of the standard do not apply to employees who work exclusively outdoors. OSHA has determined that COVID-19 does not pose a grave danger to employees who work exclusively outdoors because of the significantly reduced likelihood of transmission in outdoor settings.
However, at a construction site where workers are inside a partially complete structure, they are not truly outdoors. Some individuals on a construction site may spend significant amounts of time in a construction trailer where other individuals are present. Workers at outdoor locations may also routinely share work vehicles. These indoor exposures could account for COVID-19 clusters among employees at worksites otherwise characterized as being outdoors. Employees whose outdoor time is interrupted by the indoor periods will still be subject to the requirements in this ETS.
Whether the exemption of working outdoors applies depends on the working conditions of the individual employee. An employee will only be covered by the outdoor exemption if the employee works exclusively outdoors. Thus, an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of this ETS.
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