Critical Update: Independent Contractors Not Covered Under Biden Vaccination Plan

On October 11, 2021, we published a blog post on vaccination mandates for independent contractors.  We addressed the issue of whether OSHA, in issuing a rule covering so called “large employers” with over 100 employees, will seek to expand the definition of employee to include independent contractors. We noted that despite the national debate over the appropriate test for IC status, “OSHA is highly unlikely to wade into that hotly contested area when carrying out the Biden Administration’s COVID-19 Action Plan.”  In the Emergency Temporary Standard (ETS) just released by OHSA, the federal agency has indeed chosen not to cover independent contractors either within the scope of persons who must be vaccinated or tested or in determining whether a company employs 100 or more employees.  As the ETS states: “Part-time employees do count towards the company total, but independent contractors do not.”

We also addressed the issue of visitors at a worksite, noting that as a general rule, “independent contractors are, legally, nothing more than non-employee third parties.” We stated that it would be unwise for OSHA to issue a rule that would require non-employees, which would include independent contractors, to be vaccinated before entering a worksite.  The OSHA rule wisely steered clear of any such mandate covering non-employees.  The ETS does, however, address non-employees by stating that large employers “must not prohibit customers or visitors from wearing face coverings” and that nothing in the ETS “precludes employers from requiring . . . [non-employee] visitors to wear face coverings.”  That means that the OSHA rule fully permits companies to require independent contractors to wear masks when coming to a company worksite. The ETS goes one step further and actually encourages companies to do so, stating: “Employers may even want to create a policy encouraging the use of face coverings by anyone who enters the business.”

As we concluded in our earlier blog post, companies that chose to impose vaccination requirements on independent contractors are not likely to be legally prohibited from doing so. That conclusion is buttressed by the ETS.

Independent contractors that have an objection to being vaccinated based on a sincerely-held religious belief or their own disability are not protected by the accommodation requirements of anti-discrimination laws (other than in a state like New York with discrimination laws covering independent contractors).  Faced with this circumstance, it is anticipated that some workers classified as independent contractors will claim they should have been classified as employees and will file administrative or judicial claims for IC misclassification in an effort to gain the protections of such laws governing employees.  As a consequence, we suggested in the prior blog post that companies using ICs would be wise to enhance their level of independent contractor compliance. We provided such companies with a suggested process to accomplish that prudent objective.

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