OSHA COVID-19 ETS: Determining the Number of Employees

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firmwide or companywide count).

The ETS provides specific guidance to help employers determine how many employees they have for the purpose of complying with the vaccination and testing standard. This Compliance Bulletin provides an overview of specific guidance offered for:

  • Offsite locations;
  • Part-time employees;
  • Independent contractors or subcontractors;
  • Staffing agencies;
  • Temporary and seasonal employees;
  • Multiemployer worksites; and
  • Outdoor employees.


Employers should familiarize themselves with the ETS and use its guidance to determine the number of employees. Nonexempt employers with 100 or more employees should prepare to comply with ETS requirements by the deadlines mentioned above.

Important Information

  • Employers must consider the number of employees on their payroll on the ETS’ effective date (Nov. 5, 2021), even though compliance is not required until Dec. 5, 2021 (Jan. 4, 2022, for the testing requirement).
  • Employers with fewer than 100 employees must comply with the ETS (while the ETS remains in effect) if their workforce increases to or above 100 employees.
  • Employers affected by the ETS remain subject to its requirements while the ETS remains effective, even if the employer’s workforce fluctuates below the 100- employee threshold.
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