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Employers need to be careful about making this determination." 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. "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." "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. The preamble to the ETS discusses the 100-employee issue.
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Independent contractors do not fall within the 100-employee threshold, noted Karen Tynan, an attorney with Ogletree Deakins in Sacramento, Calif. "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. Temporary and seasonal workers are included in the count only if employed directly by the business. Workers not being subject to the vaccination or testing requirements, she said. Remote workers are included in the count for threshold purposes, despite fully remote
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"OSHA sheds light on how to count employees in itsįAQs in particular," noted Alana Genderson, an attorney with Morgan Lewis in Washington, D.C. Although many large employers know they would be covered by the ETS and small employers know they would not be, "many fall in the middle as their employee headcount teeters around 100," said Adam Roseman, an attorney with GreenbergTraurig in Philadelphia. 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.īut if courts ultimately approve the ETS, employers will have to figure out if it applies to them. While litigants hash out whether the Occupational Safety and Health Administration's (OSHA's)Įmergency 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.