May 09, 2023

Alexa Miller Shares Best Practices for Employer Vaccine Policies With Law360

In “3 Vaccine Policy Lessons Employers Can Take From COVID-19,” Law360 turned to labor and employment partner Alexa Miller for insight on lessons employers learned from the COVID-19 pandemic related to vaccine policies.

Regardless of employers’ preferred approaches going forward, they should remember that the flexibility in policy enforcement served them well over the past few years, according to Miller.

“Hopefully, employers have learned the importance of flexibility during the pandemic,” Miller said. “You have to be flexible and fluid and think about, particularly [something] like a vaccination policy, [as] kind of like a living document that needs to bend and change over time with evolving laws and public health recommendations.”

Additionally, Miller noted, “The argument that an unvaccinated employee poses a direct threat to themselves and others in the workplace just has less weight now than it did in the height of the pandemic, and that’s a result of a lot of different factors.”

Rather than adopting a mandate and enforcing it, Miller stated that employers setting policies long-term are instead leaning toward being supportive and providing encouragement to workers regarding vaccinations. In practice, that encouragement may mean policies providing paid leave for workers to get vaccinated, affording them time off to recover from any vaccination side effects or giving employees information about where to access vaccines, she added.

“These are all kind of the little trends that we’re seeing now in the long-term as modifications to previous vaccine mandates,” Miller said. “Now, we’re seeing it come in a lot of different support avenues and different incentives to encourage and incentivize employees to stay up to date with vaccination without the teeth, without the kind of compliance headache of managing state laws and without the risk of litigation.”

Miller also explained that the flurry of state laws pertaining to vaccinations or things like vaccine passports had slowed down significantly since the height of the pandemic, which benefits employers since “there was a time [when] it was really challenging to navigate.” Even if employers have had a mandate or choose to maintain one going forward, the varying laws require carveouts that take state and local laws into account, she said.

“When you’re drafting the policy, even if it is a mandatory vaccination policy, you ideally want to have some disclaimers in there that it is going to comply with applicable state or local law,” Miller concluded.

The full article is available for Law360 subscribers.

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