Counting to 100: How to Determine Whether OSHA’s COVID-19 ETS Applies to You

Employers with headcounts near 100 have questions

Allen Smith, J.D. By Allen Smith, J.D. December 10, 2021

[Update: The Supreme Court halted OSHA's ETS on Jan. 13, and OSHA officially withdrew the rule, effective Jan. 26.]

While litigants hash out whether the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS) to fight COVID-19 is lawful, employers near the 100-employee threshold of coverage by the ETS have questions about whether they will need to comply if the ETS gets a judicial green light.

If the ETS, which also serves as a proposal for a final standard, is ultimately struck down by the courts, OSHA will need to go through the formal rulemaking process to move forward with a vaccine-or-testing directive.

But if courts ultimately approve the ETS, employers will have to figure out if it applies to them. Although many large employers know they would be covered by the ETS and small employers know they would not be, "many [other employers] fall in the middle as their employee headcount teeters around 100," said Adam Roseman, an attorney with GreenbergTraurig in Philadelphia.

"OSHA sheds light on how to count employees in its preamble and FAQs in particular," noted Alana Genderson, an attorney with Morgan Lewis in Washington, D.C.

Remote workers are included in the count for threshold purposes, despite fully remote workers not being subject to the vaccination or testing requirements, she said.

Temporary and seasonal workers are included in the count only if employed directly by the business. "However, if the temporary or seasonal workers are employed separately by a staffing agency, then the host employer does not include them in their count," Genderson said.

Independent contractors do not fall within the 100-employee threshold, noted Karen Tynan, an attorney with Ogletree Deakins in Sacramento, Calif.

Featured Resource Center
COVID-19 Vaccination Resources

Preamble to the ETS

The preamble to the ETS discusses the 100-employee issue.

"For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS," the preamble states. "In other situations, two or more related 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."

Mini Kapoor, an attorney with Haynes Boone in Houston, cautioned, "The ETS does not give further guidance on the meaning of 'safety matters' for this analysis. Employers need to be careful about making this determination."

She said that "factors such as overlap between the companies' handling of workplace safety issues, including whether there is a history of responding to OSHA as one entity," will be taken into account.

Kapoor added that other relevant factors include a "common safety manager or coordinator between the companies, shared responsibilities of COVID-19 safety policies, implementation and enforcement." All of this "may weigh in favor of the companies falling under one umbrella for purposes of counting employees under the ETS."

'Single Employer'/Integrated Employer Test

Tynan explained that many workplace safety attorneys think OSHA will use the "single employer"/integrated employer test, which looks at:

  • Common management.
  • Interrelation between operations.
  • Centralized control of labor relations.
  • Degree of common ownership of financial control.

"Factors to be considered include the interrelation and integration of operations of safety and health matters under [each] element and the performance of administrative functions," she said. "Each company will need to carefully analyze whether they meet the 100-employee threshold."

Subsidiaries and Related Entities

"I strongly recommend reaching out to legal counsel if you are determining how to count subsidiaries and related entities," Genderson said.

It gets complex in such instances.

Each entity with an employer identification number (EIN) from the IRS "is to count its employees separately," said Johnine Barnes, an attorney with GreenbergTraurig in Washington, D.C.

"There is no definition of 'single corporate entity' in the ETS. However, the FAQ indicates that employees are to be counted at the employer level," she said.

"Thus, if related corporations are deemed separate employers, then each entity will count those employees who work for it under its own EIN," Barnes stated. "It is understood that the administration will look to see if an employer is operating in good faith and the levels of centralized control among entities to assess whether related employers with separate EINs are a single corporate entity."


If the ETS is implemented, smaller employers near the threshold "should document how they determined to be under the 100-employee mark," Kapoor said.

The FAQs state that the number of employees an employer has at the time of the effective date of the rule, Nov. 5, is the controlling number, even if the employer dips below 100 afterward.

This is OSHA's attempt to require as many employers as possible to fall within the scope and application of the ETS, Tynan said.

"Where related companies exist, the analysis should take into account as to why employees of those related companies are not counted," Kapoor said.

In the event of an OSHA visit to such employers if the ETS is implemented, it is likely that OSHA will ask for information related to employee count for the applicability or inapplicability of the ETS, she added.

Further, employers should carefully assess the employee count for purposes of coverage under the ETS, not only as of the effective date but also during the time covered by the ETS, which was envisioned as lasting no longer than six months from Nov. 5.

For example, she said, an employer that has 95 employees as of the effective date may not be covered by the ETS at that time, but if the organization hires five more workers while the ETS is in effect, the business would then be covered by the standard.

It is unclear how much time such employers would have to comply.

Kapoor said that, in the event the ETS wins court approval, "It would be prudent for employers who are below but close to the 100-employee mark to have procedures in place that can be implemented in short order for compliance. [The] same goes for employers who are substantially below the 100 mark but are expecting expansion of the business," which would put them at or over 100 employees.

Comments on the ETS are due Jan. 19, 2022. 



Hire the best HR talent or advance your own career.

Member Benefit: Ask-An-Advisor Service

SHRM's HR Knowledge Advisors offer guidance and resources to assist members with their HR inquiries.

SHRM's HR Knowledge Advisors offer guidance and resources to assist members with their HR inquiries.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.