As the vaccination rollout for Covid-19 continues across the US, many local health departments across the country are struggling to get vaccinations efforts running efficiently, and people in different states are confused and questioning the gaps in the process. Meanwhile, some companies are putting in place efforts to ensure their workers — including contingent workers — get vaccinated, and other groups are bringing forward concerns that frontline workers are given priority for vaccinations.
For their part, contingent workforce program managers are paying close attention to the legal as well as the moral and ethical aspects of any vaccination policies they might develop. In short, can an employer require a worker, contingent or otherwise, to receive a Covid vaccination?
“Right now, most buyers are reaching out to their legal departments or outside counsel to understand what can and cannot be done,” says Dawn McCartney, VP of SIA’s Contingent Workforce Strategies Council.
Lindsey Conrad Kennedy, an attorney with the law firm of Eckert Seamans, also advises seeking counsel.
In guidance issued last month, the US Equal Employment Opportunity said employers may require Covid vaccinations subject to limited case-by-case exceptions for disability or religious accommodations. But this guidance applies only to the employer/employee relationship.
Independent contractors may be a different story, Conrad Kennedy explains. ICs are not subject to the Americans with Disabilities Act, Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), or many other federal statutes.
“That’s not to say that state and local laws can’t come into the picture and encompass independent contractors, but the EEOC guidance, and a lot of the other guidance out there, is specifically for employment relationships,” Conrad Kennedy says.
IC Classification Effect?
Requiring ICs to get vaccinated is a murkier scenario. Conrad Kennedy advises programs first review their contracts with their workers to see if there is any provision governing their ability to impose such requirements. But beware that imposing any sort of requirement on someone who is classified as an independent contractor could suggest an employee status as opposed to an independent contractor relationship, which could then pose IC misclassification concerns.
“Entities might want to take that into consideration, particularly in situations where they might be at risk for a potential misclassification claim,” Conrad Kennedy says.
Is It Necessary?
Consider whether your contingents actually need the vaccine to work safely. Do they work with vulnerable populations? Do they work in proximity with others or with the public? Freelancers are often remote workers located in various parts of the country, which vary in how widespread Covid is as well as the availability of the vaccine.
And even if you can mandate vaccines, are you sure you want to head down that slippery slope?
“Think about if you impose such a requirement, will your workers comply with it — and if they don’t, are you willing to terminate contracts and are you ready to deal with the operational fallout from that?” Conrad Kennedy questions.
And just because you can require vaccination, doesn’t mean you should.
Joseph Lazzarotti, a principal in the Berkeley Heights, New Jersey, office of law firm Jackson Lewis PC, in a JD Supra blog post discusses several considerations and best practices that organizations might consider before requiring employees to provide information on their vaccination status.
The post suggests employers address the following:
- Who wants the information, and why?
- What steps can be taken to limit compliance risk?
- Is it necessary to even ask employees directly? Couldn’t the organization look at its health plan’s claims information for vaccine-related administration charges?
- Does the collection and processing of vaccination information raise data privacy and security risks?
Human cloud, grocery delivery firm Instacart announced on Jan. 14 a program to encourage its shoppers in the US and Canada — some of whom are employees and some independent contractors — to get a Covid-19 vaccination. Shoppers will receive a $25 vaccine support stipend once the vaccine becomes available to them to take.
“Our goal with the introduction of our new Vaccine Support Stipend is to ensure that, when the time comes, Instacart shoppers don’t have to choose between earning income as an essential service provider or getting vaccinated,” said Apoorva Mehta, founder and CEO of Instacart.
Instacart isn’t alone among firms that plan to encourage workers to get vaccinated. CNBC reported that Trader Joe’s grocery stores will reimburse employees with two hours of pay for receiving a vaccine and Dollar General announced that it would provide a one-time payment equal to four hours of pay to frontline hourly workers after they get vaccinated.
Some industries are still fighting to ensure their workers receive vaccines.
On Jan. 13, the American Staffing Association released a statement from Senior Legal Counsel Edward Lenz saying some contingent healthcare workers on the frontlines have been prevented from accessing vaccines by healthcare facilities.
“No other group of essential employees has faced greater risk during the pandemic than those providing healthcare services in the nation’s hospitals and long-term care facilities — which the Centers for Disease Control and Prevention recognized by granting them top priority for getting the new Covid-19 vaccination,” Lenz said.
However, he noted that some facilities did not offer the contingent healthcare workers access to vaccines along with traditionally employed workers.
“In so doing, the facilities are not observing the CDC infection control guidelines that explicitly include contractual staff not employed by the healthcare facility,” Lenz said. “The guidelines were issued pre-Covid-19, but the policy behind them clearly covers temporary employees.”
Concerns over contingent healthcare workers not receiving the vaccines had come from several corners. And other organizations have cited the need to get vaccines to other types of frontline contingent workers.
A union group in Chicago called Warehouse Workers for Justice released a report last week calling for production, distribution and logistics workers at warehouses and other locations — including those working through temp firms — to be prioritized for vaccination access. It noted that 65% of workers it surveyed had either gotten Covid themselves or know someone in their workplace who did. The report’s survey included 90 workers in food production, distribution and logistics.
Meanwhile, President Joe Biden announced a plan last week to administer the vaccine to the US population, CNN reported. The goal is to administer 100 million vaccine shots in his first 100 days.