"The details of what the ETS will include are scarce at this point, leaving many questions unanswered," Fisher Phillips said. How will the 100-employee threshold be counted? Will employers be required to collect proof of vaccination? What type of testing will be required? Will remote employees be covered?

Brightwell thinks it unlikely that the ETS will apply to remote workers under the "grave danger" requirement. If employees are not exposed to anyone in the workplace, the risk of contracting COVID-19 is not work-related."

That's speculation on the part of a legal expert who appears credible. Shirley, modifying your marketing PDFs from her cottage in Montana, would not seem to rise to the level of grave danger.

This specific update from Fisher-Phillips includes a cite from Labor Department late last week goes further and includes dialog with the Department of Labor:

Will remote employees be covered? Unless the ETS specifically addresses remote employees, remote employees likely will not be covered by the emergency rule. OSHA largely avoids addressing safety issues concerning employees working from home.

(Editor’s Note: On a September 10 webinar, Labor Department officials confirmed that remote workers not working in contact with others would not be covered by the emergency rule provided they don’t come to the workspace.)

So it's unlikely that remote employees will be covered. But remember, we have the following classes of remote employees:

1--Fully remote - I've never seen this person live and in the flesh.
2--Hybrid remote - Has a set schedule to be in an office periodically; could be one to two times a week, or one to two times a month.
3--Appears a few times a year to "build relationships" and "meet and greet." ("Shirley's in town for the bi-annual meeting, make sure you say hi.")

In addition, remote workers probably look a lot like the rest of America when it comes to vaccination status, with one big exception:

Most remote workers haven't faced a choice on vaccines. Many are vaccinated, but those who don't want the vaccine have been isolated for awhile. And if you've made the call that they can remain 100 percent remote, it's almost 100 percent guaranteed that the percent of unvaccinated is higher than the rest of America.

And now, we come to the big question and the accompanying reality:

--The Big Question - Do you treat remote employees like everyone else at your company and ask them to get vaccinated or tested?

--The Reality - If you believe that there's a higher percentage of unvaccinated in remote-work America, do you want to take steps that might make them ponder a move to a different employer?

To be sure, the proposed vaccine mandate is not a hard mandate. You can still decide to test the folks who don't want the vaccine, and you'd think you'd be fine. That is, until you start pondering the absurdity of testing a 100 percent remote worker who's not in the workplace with others, and will be reminded of the absurdity of taking a picture of their negative test on a weekly basis and uploading it to Sharepoint.

Yes, I just gave you the path to record keeping for remotes. Take a picture of your test. Upload it to Sharepoint. #winning

At the end of the day, there's no wrong path. Make your call and get ready to communicate if your remotes are included in this.

And yes, there will be key employees moving from hybrid remote to full remote until this is past us.  They'll test on the rare occasions they have to come in, without changing their status from "full remote."

Nothing makes broad calls on a topic like this more personal than the threat of losing great people. 

Good luck with your call on remote employees.