Understanding the OSHA COVID-19 ETS

Which employees are counted and what about outdoor workers?

Trent Cotney, Partner and Construction Team Co-leader

November 16, 2021

4 Min Read
Four pieces of puzzle with letters OSHA are connected together on black background

If you are like most employers, you undoubtedly have heard about the new Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) for COVID-19. OSHA issued the ETS on Nov. 5, and it was immediately met by resistance in several states. Within days, the 5th U.S. Circuit Court of Appeals blocked the ETS. And on November 12, that federal appeals court upheld its ruling. In the weeks to come, other cases will likely be consolidated, and eventually, the Supreme Court may have to make the final decision.

In the meantime, as you consider how the ETS could affect your company, you may not fully understand which workers you must count, what workers are affected, and how to handle those who work outside. What follows are answers to those questions.

Employees Included in the Company Count

The ETS stipulates that companies with 100 or more workers must comply with the terms of the ETS. These terms include a policy that all workers be vaccinated for COVID-19 or submit to weekly COVID-19 testing. When determining their employee counts, employers should include all full-time and part-time workers, as well as remote and seasonal workers. Independent contractors should not be included. 

Companies with multiple locations must count all workers at those locations for their total—rather than completing a count per location. Companies that use staffing agencies do not need to include those workers in their count. Instead, the staffing agency will include them in their totals. 

Franchises that are independently operated and owned should count only their individual workers. However, the franchisor would need to count all employees at all franchise locations.

Using those parameters, employers are required to determine their total employee count as of the date of the ETS (Nov. 5, 2021). For example, if a company had 110 employees on that date, the ETS applies, and the company must implement the vaccine and testing policy. However, if 15 employees leave the company and the number drops below 100, the company must still comply with the ETS for its duration. On the other hand, a company with 98 employees on the ETS date is not required to comply with the ETS. However, if it adds two or more employees after November 5, reaching or exceeding 100, it is required to comply.

Employees Who Must Be Vaccinated or Tested

Although all full-time, part-time, remote, and seasonal employees are included in the employee count, not all must follow the ETS requirements. For example, those who work from home are not subject to the vaccination and testing policy. Similarly, workers who have no contact with others do not have to comply with the policy.

Exceptions for Outdoor Workers

Employees who work exclusively outdoors have other considerations. They are included in the employee count, but if they meet the following criteria, they are not subject to the vaccine and testing policy:

  • They must work outdoors every day (for example, employees who work outdoors on some days and indoors on other days would not be exempt from the ETS requirements).

  • They must not occupy work-related vehicles with other employees on a routine basis as part of their duties (for example, driving to worksites together in company vehicles would not be allowed).

  • They must work outdoors throughout every workday, with exceptions made for minimal use of indoor spaces where others may be present (such as an administrative office or restroom), provided that time indoors is brief.

  • Their responsibilities must indeed be outdoors. For example, those working on construction projects that include indoor work (where ceilings and walls prevent the flow of fresh air) would not be allowed the ETS exemption.

According to the provisions of the ETS, companies with 100 or more employees would be required to create a vaccination policy within 30 days of the ETS announcement (meaning December 5, 2021). In addition, those employers have 60 days from the ETS announcement (meaning January 4, 2022) to set the testing requirement and enforce it. However, it is unclear if these dates will change based on the 5th Circuit ruling.

As we wait to see how the dust settles, your company will benefit from preparing and having a game plan. While these requirements may feel burdensome, if a higher court eventually supports the ETS, it is essential that you do an accurate employee count and be ready for compliance. If you are found to be noncompliant, OSHA can levy some hefty fines (as much as $14,000 for each violation or more for repeat violations), and you want to avoid that.

For more information, you may want to review OSHA’s ETS Frequently Asked Questions. However, if you still have concerns, do not hesitate to consult legal counsel. An experienced employment attorney will be monitoring this issue and can help you determine how the ETS applies to your business.

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.

About the Author(s)

Trent Cotney

Partner and Construction Team Co-leader, Adams and Reese LLP

Trent Cotney serves as an advocate for the roofing industry and general counsel of the National Roofing Contractors Association and several other industry associations. For more information, contact the author at [email protected] or at 813.227.5501.

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