Understanding that how these challenges may ultimately play out is still very much uncertain, the ETS, as drafted, required employers with 100 or more employees to achieve full vaccination status or implement mandatory testing for unvaccinated employees by January 4, 2022. With the stay of the ETS, it is unclear whether and when this mandate may come into effort, but employers still should consider planning for the contingency that the ETS will be effective at some point in the future, including as early as January 4, 2022. The ETS, as issued, applies to any employer that has 100 or more employees at any time while the ETS is effective.
Notably, the threshold includes all employees, company or firm-wide, even if some of those employees are ultimately exempted from vaccine or testing due to individual circumstances, as discussed below. For example, an employer with 50 locations that each has only two employees would still be covered by this ETS. The threshold also includes any seasonal, temporary, and part-time employees but not any independent contractors. If an employer’s workforce fluctuates throughout the duration of the ETS, its provisions will apply to the employer during any period in which it has 100 or more employees.
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