Independent Contractor Misclassification and Compliance News November 2021

OHSA Suspends Implementation of Emergency Temporary Standard

The United States Department of Labor, Occupational Safety and Health Administration (“OSHA”) suspended activities relating to the implementation and enforcement of the COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) after the United States Court of Appeals for the Fifth Circuit ordered that OSHA “take no steps to implement or enforce” the ETS. The OSHA website states:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

The Fifth Circuit Court of Appeals said that a collection of individuals, employers, states, and groups (“Petitioners”) met the four (4) requirements for granting a stay:

The Petitioners are likely to succeed on the merits;

Denying the motion would cause Petitioners irreparable harm;

Granting the motion would not substantially injury OSHA or others; and

Granting a stay is in the public interest.

Following the order by the Fifth Circuit, the United States Judicial Panel on Multidistrict Litigation (“Panel”), issued an order consolidating the petitions from a number of circuits including the Fifth Circuit, to be reviewed by the Sixth Circuit. The Sixth Circuit was selected randomly by the Panel. The Sixth Circuit Court of Appeals will now review and address the objections to the ETS.

The ETS was issued by OSHA on November 4, 2021 and requires employers to implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.

ETS and Independent Contractors

In general, OSHA governs employees and worksites and while some requirements may apply to independent contractors who visit worksites (for example, independent contractors on a construction site must wear hard hats), most of OSHA requirements do not apply to independent contractors. The ETS does not discuss independent contractors except those who are included in the 100 employee threshold that determines whether the ETS applies to the business or not. The ETS states:

“The applicability of this ETS is based on the size of an employer, in terms of number of employees, rather than on the type or number of workplaces. In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not. [italics added].”

The ETS does not apply to independent contractors. Employers who are subject to the ETS may still require independent contractors, visitors, or other non-employees to wear masks or provide proof of vaccination, but the ETS does not compel employers to impose these requirements on independent contractors.

Independent Contractors and the Mandate for Federal Contractors

While the ETS may not apply to independent contractors, President Biden’s Executive Order 140142, Ensuring Adequate Safety Protocols for Federal Contractors, does. Independent contractors working on federal contracts must comply with the order. The order applies to federal contractors, subcontractors, and their employees. While an independent contractor is not an employee, if the independent contractor is working on a federal contract, it is likely that they are subcontractor and/or their contract with the federal contractor requires them to comply with the order.

For more information, check out our resources page on misclassification and compliance. If you have any questions about engagement, classification, or management of your independent workforce, we’re always here to help.