The Review Magazine May / June 2021

• According to Blackhawk Network, an incentive solutions company, in a recent survey one-third of respondents indicated they would be vaccinated for a cash incentive of $100 or less. To avoid discrimination claims, be sure to structure any incentive program to include ways that those with disability or religious exceptions are able to earn the incentive. For example, receiving the incentive for periodic COVID-19 testing. You should also consult with your attorney or finance department to determine if the proposed incentive program is a permissible public expenditure in Michigan. Generally, employee incentives and benefits that are negotiated with your unionized employees are considered permissible public expenditures in Michigan. This may provide an avenue if you determine that an incentive program is in the best interest of your workplace. For those employees that refuse to be vaccinated, you can require periodic mandatory COVID-19 tests. Mandatory

• Be sure that your mandatory policy addresses medical and religious exceptions. If a medical or religious exception applies, employers should conduct an assessment of the risk posed by the employee and based on that risk, may exclude the employee from entering the workplace for the duration of the pandemic. You may also mandate that the employee

receive periodic COVID-19 tests in order to remain in the workplace. • When made mandatory, adverse reactions to the vaccine could create workers' compensation claims. How will these be handled? Will paid time off be provided? • What are the ramifications for employees that refuse the vaccine? Will they be required to submit to periodic COVID-19 testing to remain in the workplace, will they be required to take a leave of absence, or are you prepared to take disciplinary action?

tests are allowable under EEOC and Americans with Disabilities Act (ADA) guidelines. Employees testing positive would be required to follow CDC guidelines for quarantine. It should be noted that requiring COVID-19 antibody testing is not an option. The EEOC has ruled that antibody testing is considered a medical examination under the ADA and does not meet the criteria of being “job related and consistent with business necessity.”

Proof of Vaccination Whether voluntary or mandatory, employers do have the right to require employees to provide proof of vaccination. Vaccinations are not considered medical exams under the ADA but be cautious on inquiring as to the reason an employee has not been vaccinated which may reveal protected medical, disability, or religious information. No matter the approach taken, the goal is to ensure a safe work environment. It’s important to keep your employees informed on the vaccine and its availability and be sure to emphasize that COVID-19 safety protocols remain in place even after vaccination. Carol Stone, SPHR, is the director of human resources & labor relations for the City of Midland. You may contact her at 989.837.3360 or cstone@midland-mi.org.

Other Policy Considerations There are alternatives to consider before mandating vaccinations that will help keep the workplace safe and may encourage employees to consider vaccination. • If you provide additional paid leave time for COVID-19 related illness or quarantine, stipulate that this leave is no longer available for employees that refuse the vaccine. In the event they become ill with COVID-19 or are required to quarantine, they will need to use their accumulated leave time or take leave without pay. • Some employers, especially in the private sector, are providing incentives for vaccination. These perks could include cash payments and/or additional paid leave time.

12 THE REVIEW

MAY / JUNE 2021