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 (Nov. 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.