Determining the OSHA ETS 100-Employee Threshold

All eyes have been on the much-anticipated COVID-19 Emergency Temporary Standard (“ETS”) as it continues to undergo judicial review. After the surprising ruling in the Sixth Circuit Court of Appeals upholding the OSHA ETS, the United States Supreme Court will now make a final determination as to its legality. This article will briefly discuss what employers must know to determine whether the ETS applies to them or not.

One of the main concerns for employers is understanding how to count their employees to determine if the ETS applies to them, especially employers with multiple workplace locations. The ETS applies to large employers with a total of 100 employees or more at the time the ETS went into effect (November 5, 2021). To determine whether an employer has 100 employees, employers must include all employees across all domestic workplaces. Specifically, this includes, but is not limited to, full-time, part-time, remote workers, temporary and seasonal workers if employed directly by the employer, and outdoor workers. Interestingly, although the ETS does not apply to remote and outdoor workers, they are counted towards the 100-employee threshold. In other words, it does not matter that the ETS will not apply to certain workers (e.g., remote workers, outdoor workers, etc.); for counting purposes, all of the workers as mentioned above are included.

Some confusion lies with corporations that have multiple locations or subsidiaries. There is minimal guidance on this issue. The ETS references single corporate entities with multiple locations but elaborates marginally. Namely, the ETS indicates that for single corporate entities with several locations, the employees at all locations count for purposes of the 100-employee threshold for coverage. However, the ETS omitted a definition for a single corporate entity. In light of this omission, employers must be careful how they handle this. One way to determine the definition is detailed in the ETS FAQs. The FAQs mention that the count should be done at the corporate-wide level. For example, one corporate entity has 50 locations with three employees at each location. Under the guidance, the corporate entity has 150 employees and is covered by the ETS (and each respective location is covered).

What if they are not the same company but have similarities like common ownership? The ETS provides that “two or more 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.” In other words, OSHA will determine if the safety is centralized or if each entity is responsible for their own safety program. We anticipate additional guidance on this issue if the ETS moves forward.

Another area of importance is at what point in time does an employer have to determine its respective employee count, especially for employers whose employee count is at or close to 100. Under the ETS, an employer must initially determine the total employee count as of the effective date of the ETS (November 5, 2021). If such an employer has 100 employees or more at this point, the ETS applies for the duration of the standard, regardless of if the employee count decreases to under 100 employees. On the other hand, the ETS applies if an employer does not meet the 100-employee threshold as of the effective date but hires more workers and hits or surpasses 100. At this point, the employer must come into compliance and stay in compliance for the standard duration. In other words, at any point, once the ETS applies to an employer, it applies for the duration of the standard. Keep in mind, the ETS is designed to last for six months, at which time a determination will be made as to whether to make it a permanent standard.

As a result, employers should document the determination of when the ETS applies. This documentation includes the process they used, what employees were included and excluded, locations of multiple workplaces and the employee count, the specific dates the employer initially determined, etc. All of this may be fair game with OSHA should an audit ever take place. And, as always, it is best to be prepared and minimize all potential risks that may arise with compliance with the ETS.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.