Vaccination mandates for independent contractors | Locke Lord LLP

Can businesses require independent contractors to be vaccinated? Do independent entrepreneurs have any rights if they do not want to comply with a vaccination mandate? The answer to these questions may depend on whether the independent contractor has been properly classified. Before imposing a vaccine mandate on ICs, companies should take steps to improve their compliance with applicable federal and state laws governing ICs, as outlined below.

As most Americans are well aware, President Biden released a COVID-19 action plan last month. As part of the plan, the Occupational Safety and Health Administration (OSHA) will develop a rule that will require all private “employers” with 100 or more “employees” to ensure that their workforce work is fully vaccinated or requires at least one negative COVID test weekly before coming to work. The Rule will also require vaccinations for employees of government contractors; a negative test result will not suffice. But the Plan does not mention whether independent contractors will be covered by vaccination mandates. This is an open question that many ask.

Companies with more than 100 employees

OSHA generally only protects employees; independent contractors are not covered by the Occupational Safety and Health Act. Will OSHA seek to broaden the definition of employee to include independent contractors? The national debate on the appropriate test for IC status is hotly debated. OSHA is highly unlikely to enter this hotly contested area during the implementation of the Biden administration’s COVID-19 action plan.

A related question is whether OSHA will include in its rule a requirement that independent contractors entering an employer’s premises must be vaccinated or produce a negative test result from last week? As a general rule, independent contractors are, legally, only non-salaried third parties. And there may be tens, if not hundreds or thousands of non-employees entering workplaces, such as a retail store, every week. Some of these non-employees may be independent contractors who visit infrequently or regularly. It would place a huge burden on businesses to verify every IC that visits a job site. If OSHA is inclined to issue a rule that is easy to apply, it would be unwise to complicate matters by applying the rule to any independent contractor.

Government contractors

The COVID-19 action plan provides in an executive order that employees of government contractors – those who do business with the federal government – must be vaccinated by December 8, 2021, with no possibility for these workers to provide a weekly negative test result. The guidelines require employers to consider medical and religious exemptions.

For the same reasons it is different for OSHA to force large employers to ban unvaccinated independent contractors from their job sites, it is equally unlikely that government contractors will be required to impose vaccination mandates on ICs. However, while not expressly required by the executive decree, government contractors are free to require independent contractors to be vaccinated.

Independent contractor contracts and vaccination mandates

If OSHA’s next rule does not include independent contractors as employees, can large employers with 100 or more employees impose vaccination requirements on independent contractors they hire? Probably yes.

If an independent contractor agreement contains conditions for the company to impose health and safety requirements, then there is likely a valid contractual basis for imposing a vaccination mandate on an independent contractor.

Likewise, if the contractor provides services to the clients of the business and there is a provision in the independent contractor agreement that the contractor must comply with the requirements or requests of the clients, then a mandate vaccination of the client is likely to bind the CI. If an independent contractor chooses not to get the vaccine, they should expect to lose work opportunities for these clients – and there is little to no legal recourse for independent contractors.

What about vaccination mandates when there is no contractual basis in the governing agreement? Companies should be able to impose a vaccination mandate even in the absence of a contractual basis in the independent contractor agreement. Likewise, in the absence of an agreement between the parties, a company should be legally free to impose this type of health and safety mandate on independent contractors.

CI Misclassification Claims

Of course, if a CI claims to have been misclassified, then the problem is much more complicated when, for example, an independent contractor has a health problem that prevents them from getting the vaccine or has a sincere religious objection to the vaccinations. These exceptions may be available for employees under Title VII of the Civil Rights Act of 1964 and comparable state and local laws on human rights and fair employment practices, or the Americans with Disabilities Act or state or local laws on discrimination based on disability. However, these laws, with a few exceptions like New York, do not apply to independent contractors.

If a company refuses to consider an independent contractor’s disability or religious beliefs related to vaccinations, it may prompt the IC to file a complaint in court or with a regulatory body alleging misclassification of workers. , which allows the entrepreneur to seek to use the protections of the employment laws.

The company can mitigate this type of risk, however, by accepting a negative weekly COVID test in lieu of a vaccination, unless the independent contractor is required to perform on-site services for a client who does not accept the negative tests instead of vaccination.

What if an independent contractor resists a vaccination warrant and has no reason for refusal based on applicable law or is offered the alternative of presenting a negative weekly test result? In this situation, the IC may end up losing a work opportunity and it is unlikely that it has a solid legal basis to oppose it.

If the CI has a sincere religious belief or a disability-related reason for not getting vaccinated, independent contractors resisting a vaccination mandate may try to argue that such a mandate is evidence of leadership and control and , therefore, undermines the independent entrepreneur relationship.

This is not, however, a convincing legal argument. As court decisions have made clear, the type of direction and control that undermines independent contractor status is control over how and by what means services are to be performed; that is to say, How? ‘Or’ What the services must be performed. Health and safety requirements, such as an immunization warrant, do not affect how the CI performs its services.

In other words, requiring vaccination or a negative COVID test does not appear to imply the manner or the means by which the services are rendered. Any requirement for vaccination or negative testing is likely to be viewed by the courts, at most, as a type of ancillary control to which courts generally give unimportant weight, in the absence of other factors demonstrating control over. how the work is to be done. be carried out.

Small employers not covered by the president’s action plan

What about businesses with less than 100 employees or those that do not do business with the federal government? It is expected that some small businesses will impose a vaccination requirement on independent service providers who regularly provide services on the company site as well as on company employees.

CIs are unlikely to have a legal basis to challenge such a rule with a smaller employer – other than claiming that their refusal to be vaccinated is due to religious belief or sincere disability, and then to initiate legal action or administrative proceedings. complaint that the company wrongly classified them as independent contractors instead of employees.

The practical effects of vaccination mandates on independent contractors

What are the likely effects on businesses that might decide to require freelancers to be vaccinated against COVID-19?

Most independent contractors will comply, even reluctantly. But independent entrepreneurs who strongly oppose a vaccination warrant might well seek other opportunities where they don’t have to be vaccinated or tested every week.

For companies that do not provide medical or religious accommodations to vaccination warrants, it may turn out that they instigated a freelance writer to take legal action for misclassification of an independent contractor, where the contractor claims that he is in fact an employee and is therefore entitled to legal protections that are otherwise only available to employees.

Companies that impose vaccination mandates on both employees and independent contractors performing similar functions may find that they create a shortage of workers. For companies that impose vaccination mandates only on employees, these employees may seek to provide services on an independent contractor basis.

To take with

Before imposing a vaccination requirement, companies should ensure that they have thought through the above issues and taken steps to ensure they have an increased level of compliance with applicable independent contractor laws, given the foreseeability that one or more independent contractors may initiate misclassification lawsuits, including a class action lawsuit. Many savvy companies have used a process such as IC Diagnostics (TM), where the company restructures, re-documents and / or re-implements its independent contractor relationships in order to minimize the liability of misclassifying a business. personalized and sustainable way compatible with the existing business model.

Since time can be of the essence before a vaccination mandate is imposed on independent contractors, a ‘quick and dirty’ upgrade can often be done quickly enough to provide at least a higher level of protection against a lawsuit for misclassification of an independent contractor.

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