In November of 2021, the Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS). The ETS mandated that covered employers with 100 or more employees develop and implement a mandatory vaccination policy that required their employees to become fully vaccinated or test for COVID-19 weekly. Since that time, there have been numerous legal challenges to the ETS. Most recently, the U.S. Supreme Court reinstituted a stay on these measures pending the outcome of a Sixth Circuit Court of Appeals case. As a result, OSHA withdrew the ETS as an enforceable standard. However, OSHA maintains that it is not withdrawing the ETS as a proposed rule. It’s also anticipated that OSHA will develop a similar ETS in the future. Therefore, if your business has 100 or more employees, knowing how to assess the agency’s requirements and recommendations may still be necessary. The first step is finding out: Do all of my employees count for OSHA’s 100-count threshold?
OSHA’s ETS
Currently, OSHA is considering creating a permanent rule and is treating the withdrawn ETS as a proposed rule. While the rule is pending, the agency plans to continue enforcing workplace safety measures that protect workers.
Employers continue to be free to adopt and implement COVID-19 policies that are in compliance with applicable state, local and federal laws. However, it’s anticipated that a version of the ETS will become a permanent rule at some point in the future. Therefore, the following provisions and requirements may apply in the future.
Which Employers are Covered Under OSHA’s former ETS?
In general, the former ETS covered employers who have 100 or more employees in the United States, with some exceptions.
Which Types of Employees Counted Under the 100-Employee Threshold?
- Full-time employees
- Part-time employees
- Employees under 18 years of age
- Seasonal Employees
- Temporary Employees
- Telework Employees
- Remote Employees
- Employees who work outdoors
- Employees who work indoors.
Which Workers Were Not Considered Employees under the Former ETS?
- Staffing agency workers
- Independent contractors
What About an Employee’s Location?
OSHA’s employee count included all employees, even those working in different locations. Franchise locations were typically viewed as individual businesses. Therefore, OSHA counted the number of employees at a location rather than all franchise locations.
Internationally-based employees did not count towards the 100-count threshold. Employees working at off-site locations did count, however. If there were 100 or more employees in the U.S. working off-site or on-site, that employer would fall within the scope of the standard.
Will the Former ETS Come Back?
In its January decision, the Supreme Court took issue with the breadth of the types of businesses to which the ETS was being applied. Practically speaking, this development does not mean the issue of the OSHA’s ETS has been decided. However, it gives employers more time to make the necessary changes to comply should the rule be upheld. Given the tone of the Supreme Court’s decision, it’s not likely that the current version of the rule will survive review. However, the door remains open for another more narrowly tailored version of the ETS or a permanent rule to come into existence.
If you have questions regarding OSHA compliance, it’s crucial that you meet with an experienced business attorney. Your business lawyer can help you assess your situation and determine the best ways to protect your business.
Contact an Experienced Business Attorney
Attorney Richard Sierra at the Florida Small Business Center assists clients like you with business and litigation matters. As always, Our Goal Is to Help You Succeed™. For an appointment, you may call us at 1-866-842-5202 or use the contact form on our website. We represent clients throughout the State of Florida, including Coral Springs, Coconut Creek, Boca Raton, Delray Beach, Pompano Beach, Sunrise, Fort Lauderdale, Miami, West Palm Beach, Jupiter, Deerfield Beach, Stuart, Port St. Lucie, Orlando, Naples, Fort Myers, Sarasota, Tampa, and surrounding communities.