Can companies mandate that independent contractors be vaccinated? Do independent contractors have any rights if they are unwilling 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 vaccination mandate on ICs, companies should take steps to enhance their compliance with applicable federal and state laws governing ICs, as discussed below.
As most Americans are well aware, President Biden issued a COVID-19 Action Plan last month. Under the Plan, the Occupational Safety and Health Administration (OSHA) will be developing a rule that will require all private “employers” with 100 or more “employees” to ensure their workforce is fully vaccinated or require at least weekly negative COVID testing 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 the vaccination mandates. That is an open question that many are asking.
Companies with over 100 Employees
OSHA generally protects employees only; independent contractors are not covered by the Occupational Safety and Health Act. Will OSHA seek to expand the definition of employee to include independent contractors? The national debate over the appropriate test for IC status is hotly debated. OSHA is highly unlikely to wade into that hotly contested area when carrying out the Biden Administration’s COVID-19 Action Plan.
A related question is whether OSHA will include in its rule a requirement that independent contractors who come onto an employer’s premises be vaccinated or produce a negative test result from the past week? As a general rule, independent contractors are, legally, nothing more than non-employee third parties. And there can be dozens if not hundreds or thousands of non-employees who enter worksites on a weekly basis, such as a retail store. Some of those non-employees may be independent contractors who visit infrequently or regularly. It would place an enormous burden on businesses to check every IC who visits a worksite. If OSHA is inclined to issue a rule that is easy to carry out, it would be unwise for it to complicate matters by applying the rule to any independent contractors.
The COVID-19 Action Plan provides in an Executive Order that employees of government contractors – those who do business with the federal government – be vaccinated by December 8, 2021, without any option for such workers to provide a weekly negative test result. The guidance requires employers to consider medical and religious exemptions.
For the same reasons why it is unlike that OSHA will require large employers to ban unvaccinated independent contractors from their worksites, it is equally unlikely that government contractors will be required to impose vaccination mandates on ICs. However, while not expressly required by the Executive Order, government contractors are free to require independent contractors to be vaccinated.
Independent Contractor Agreements and Vaccination Mandates
If the upcoming OSHA rule does not include independent contractors as employees, can large employers with 100 or more employees impose vaccination requirements on independent contractors they engage? Probably yes.
If an independent contractor agreement contains terms permitting the company to impose health and safety requirements, then there is likely to be a valid contractual basis to impose a vaccination mandate on an independent contractor.
Likewise, if the contractor provides services to the company’s customers and there is a provision in the independent contractor agreement that the contractor must comply with customer requirements or requests, then a customer vaccination mandate is likely to bind the IC. If an independent contractor chooses not to be vaccinated, he or she should expect to lose out on work opportunities for such customers – and there is little if any legal recourse for independent contractors.
What about vaccination mandates where 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, where there is no agreement between the parties, a company should be legally free to impose this type of safety and health mandate on independent contractors.
IC Misclassification Claims
Of course, if an IC claims to have been misclassified, then the issue is much more complicated where, for example, an independent contractor has a medical condition that prevents him or her from being vaccinated or has a sincerely-held religious objection to vaccinations. Those exceptions may be available to employees under Title VII of the Civil Rights Act of 1964 and comparable state and local human rights and fair employment practice laws, or the Americans with Disabilities Act or state or local disability discrimination laws. However, those laws, with very few exceptions like New York, do not apply to independent contractors.
If a company refuses to accommodate 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 agency alleging worker misclassification, whereby the contractor can seek to utilize the protections of employment laws.
The company may mitigate that type of risk, though, by accepting a weekly negative COVID test in lieu of vaccination, unless the independent contractor is required to perform services onsite for a customer that does not accept negative tests in lieu of a vaccination.
What if an independent contractor resists a mandate to be vaccinated and does not have a basis for his or her refusal premised upon an applicable law or is offered the alternative of presenting a weekly negative test result? In that situation, the IC may end up losing a work opportunity and is unlikely to have a sound legal basis to object.
If the IC has a sincerely-held religious belief or a disability-related reason for not becoming vaccinated, independent contractors resistant to a vaccination mandate may try to argue that such a mandate is evidence of direction and control and, as a result, undermines the independent contractor relationship.
That is not, however, a compelling legal argument. As court decisions have made clear, the type of direction and control that undermines independent contractor status is control over the manner and means by which the services are to be performed; i.e., how the services must be performed. Health and safety requirements, such as a vaccination mandate, does not relate to how the IC performs his or her services.
Stated another way, requiring vaccination or a negative COVID test does not seem to implicate either the manner or the means by which the services are rendered. Any such vaccination or negative test requirement is likely to be regarded by the courts, at most, as a type of incidental control that is typically given inconsequential weight by the courts, in the absence of other factors demonstrating control over the how the work is to be performed.
Smaller Employers Not Covered by the President’s Action Plan
What about companies with less than 100 employees or those who do not do business with the federal government? It is anticipated that some smaller companies will impose a vaccination requirement on independent contractor service providers who regularly provide services at the company’s worksite as well as the companies’ employees.
It is unlikely that ICs will have much if any legal basis to challenge any such rule at a smaller employer – other than claiming that their refusal to be vaccinated is due to a sincerely-held religious belief or disability, and then bringing a lawsuit or administrative complaint that the company misclassified them as independent contractors instead of employees.
The Practical Effects of Vaccination Mandates on Independent Contractors
What are the likely effects on companies that may decide to require freelancers to be vaccinated from COVID-19?
Most independent contractors will comply, even if reluctantly. But those independent contractors who are steadfastly opposed to a vaccination mandate may well look for other opportunities where they don’t have to be vaccinated or tested weekly.
For businesses that do not provide medical or religious accommodations to vaccine mandates, it may find that it has provoked a freelancer to file an independent contractor misclassification lawsuit, where the contractor claims he or she is actually an employee and therefore entitled to legal protections that are otherwise available only to employees.
Businesses that impose vaccination mandates on both employees and independent contractors performing similar functions may find that they are creating a shortage of workers. For companies that impose vaccination mandates only on employees, those employees may seek to provide services on an independent contractor basis.
Before imposing a vaccination requirement, companies should make sure they have thought through the issues above and taken steps to ensure they have an enhanced level of compliance with applicable independent contractor laws, given the foreseeability that one or more independent contractors may file misclassification suits including a class action. Many savvy businesses have resorted to a process such as IC Diagnostics (TM), where the company restructures, re-documents, and/or re-implements its independent contractor relationships to minimize misclassification liability in a customized and sustained manner consistent with the existing business model.
Because time may be of the essence before a vaccination mandate is imposed on independent contractors, a “quick and dirty” upgrade can oftentimes be accomplished fast enough to provide at least a greater level of protection from an independent contractor misclassification lawsuit.