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Now that the Occupational Safety and Health Administration (“OSHA”) has issued its Emergency Temporary Standard (“ETS”) requiring employee vaccination / testing for private employers with 100 or more employees, the first question on the minds of many small to mid-size employers is:  “Are we covered?”  Fortunately, OSHA has provided guidance regarding the question of coverage.

This blog post summarizes key issues regarding “How do you count to 100?” for purposes of coverage by the ETS.

Question

Answer

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.

Are part-time employees counted? 

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.

Are employees who perform work at offsite locations, such as customer homes, counted?

Yes.  In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work. For example, if an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would fall within the scope of the standard.

How are employees counted in franchisor/franchisee settings?

In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would generally be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.  For example, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.

Are independent contractors included in the 100-employee threshold?

No. Independent contractors do not count towards the total number of employees.

Do employees who are working from home count towards the 100-employee minimum?

Yes.  If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees. However, the standard’s requirements would only apply to the 50 employees who work in the office at least part time around other individuals, and not to those 100 employees working exclusively from their homes.

How are employees from staffing agencies counted?

In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency. On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).

How are temporary and seasonal workers to 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.

How are employees counted at a multi-employer worksite?

On a typical multi-employer 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; the host employer and general contractor would not need to count the total number of workers at each site. That said, 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 the ETS even if it does not have 100 or more employees present at any one worksite.

Is vaccination status considered in counting employees?

No. Vaccination status is not considered when counting the numbers of employees. For example, if an employer has 200 employees, all of whom are vaccinated, that employer would be covered.

Are employees who work exclusively outdoors counted?

Yes. If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered. However, the standard’s protections would only apply to the 10 employees working in indoor settings around other individuals (other than telework in their own homes), not to those employees working exclusively outdoors.

Are employees who are minors counted and does the ETS apply to them?

Yes. Employees who are minors (who may need parental consent to be vaccinated or tested for COVID-19) must be counted in determining if the employer meets the 100-employee threshold for inclusion in the standard, and minors are subject to all requirements of the standard. 

How should an employer determine if it meets the 100-employee threshold for coverage under the standard if it has 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.

Would a state or local government employer with more than 100 employees be subject to the ETS?

The ETS does not apply to state and local government employers in states without State Plans, because state or local government employers and employees are exempt from OSHA coverage under the OSH Act (29 U.S.C. 652 (5)). However, in states with OSHA-approved occupational safety and health programs (“State Plans”), state and local government employers with 100 or more employees will be covered by State occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as federal OSHA’s requirements in this ETS. State Plans may also choose to adopt more protective occupational safety and health requirements (29 USC 667(c)). 

Are employees working abroad to be counted?

Yes.  Employees of an employer who are currently working abroad for that employer are counted for purposes of determining whether the 100 employee threshold has been met.  But the requirements of the ETS would not apply to most employees working abroad.  OSHA requires employers to adhere to certain safety standards in the workplace. The Occupational Health and Safety Act’s express language limits its applicability to “employment performed in a workplace in a State, the District of Columbia, The Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Lake Island, Outer Continental Shelf lands . . . Johnston Island, and the Canal Zone.” 29 U.S.C. § 653(a).

How are employees of related / affiliated companies to be counted?

OSHA did not address this question in its guidance / FAQs specifically, but classic single-employer analysis would likely govern here, considering factors such as the inter-relation of the human resources and labor relations functions at the companies, common management, common ownership, etc. This is a fact-specific inquiry that should be reviewed with counsel for guidance.