Please note: On Saturday, November 6, the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees. The current ruling is temporary, but there are likely to be updates soon. MP will update our materials accordingly. In the interim, our HR services experts recommend employers continue to prepare in case these deadlines are upheld.

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Employers who are keeping up to date on the COVID vaccine mandates may be confused about whether they’re covered by OSHA’s recent Emergency Temporary Standard (ETS). Workplaces covered by the ETS must create and enforce employee policies that require either COVID vaccination or weekly COVID testing. (Of course, to remain ADA compliant, policies must allow employees to request medical exceptions, as well as religious exceptions.) MP’s HR compliance experts share two considerations to assist employers in determining if they need to meet the ETS’s HR and compliance requirements.

1. Employer size

OSHA’s ETS covers employers with 100 or more employees. Employers have had many questions about how to determine their employee count. They must include these employees:

• Part-time
• Full-time
• Remote
• Hybrid-remote
• Seasonal
• Temporary employees not obtained from a staffing agency
• Union employees

Note that employers may be covered because they have over 100 employees. However, it’s possible some (or even all) of their employees won’t be required to get vaccinated or test for COVID weekly. Even if employees are included in the 100 count, they may be exempted from the ETS requirements.

2. Exemptions

Some employers may not be covered by OSHA’s ETS, even if they have 100 or more employees. This is because they are required to meet other COVID vaccine mandate regulations. Two specific groups must comply with their own COVID safety requirements:

• Employers covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
• Employers covered by the Healthcare ETS

Employers who fall under these two categories are required to meet the (more stringent) stipulations and deadlines set by the Healthcare ETS and the Safer Federal Workforce Task Force COVID-19 Workplace Safety guidelines.

Aside from employers, specific categories of employees may be exempt from the requirements of OSHA’s ETS:

• Employees who work alone— these employees have no (in-person) contact with coworkers, clients, or customers during their workday
• Employees who work from home exclusively
• Employees who work outdoors exclusively

Employers must carry out the requirements of the ETS if they have over 100 employees, even some staff are exempt from the ETS requirements because they work from home, work outside, etc. Employees who report to the office or workplace and have contact with coworkers, clients, etc., must be vaccinated or get tested weekly for COVID and wear a mask in the office.

Employers OSHA’s ETS doesn’t cover

There are employers that don’t fall into the below categories:

• Employers with 100 or more employees covered by OSHA’s ETS
• Employers covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
• Employers covered by the Healthcare ETS

These employers are not subject to the requirements of the COVID vaccine mandates. Employers not subject to the vaccine mandates may reduce risk and exposure by simply encouraging vaccination and masking in the workplace (rather than mandating it). Some employers that aren’t subject to the COVID vaccine mandates may choose to develop mandatory COVID vaccination or testing policies for their employee handbooks anyways. These employers should work with an employment attorney and HR services experts (such as MP’s).