What Employers Should Know Entering Year Three of the Pandemic

February 4, 2022

New Year, Same Virus


By Alexander J. Cerbo, Esq.


As we enter a new year, our lives remain subject to COVID-19 and its variants. With cases surging across the country, vaccination has become a thing of the past as booster shots have become all the rage. Tired, worn out, and frustrated with this seemingly never-ending pandemic, it is important that employers remain vigilant of important COVID-related updates which may impact their workforce and, ultimately, their bottom line.


OSHA/CMS Litigation

At the end of 2021, the Occupational Safety and Health Administration (OSHA) and the Center for Medicare and Medicaid Services (CMS) issued vaccine mandates that would have impacted nearly 100 million American workers. The OSHA mandate required employers with 100 or more employees to implement a written policy requiring vaccination or weekly testing. The CMS mandate would have generally required vaccination of employees that work in healthcare facilities which receive Medicare and Medicaid reimbursement.


In a major win for businesses across the country, the Supreme Court issued a stay on the OSHA mandate, concluding that the agency overstepped its authority as COVID-19 is not strictly an occupational hazard.


The Supreme Court’s stay is not a final ruling on the topic. The OSHA mandate continues to proceed in the lower courts, and the court left the door open for narrower regulations. Also, the court did allow the CMS mandate to proceed. The agency, in a recent memo, advised employers that their healthcare workers must be “fully vaccinated” (either two shots of the Moderna or Pfizer vaccines, or one shot of the Johnson & Johnson vaccine) by Feb. 28.


Vaccine Mandates

Besides OSHA and CMS, private employers can implement their own vaccine mandates if they wish. They may want to consider whether they want their employees to be ‘fully vaccinated’ as currently defined, or if they want their employees to be boosted as well. It may be advantageous for employers who wish to mandate vaccination to require booster shots. Early research suggests booster shots decrease the severity of symptoms, allowing those who contract the virus to recover more quickly. This, in turn, will allow employees to return to work sooner. Some exemptions do apply, including religious objections or a disability accommodation.


In addition, employers should continue to stay abreast of any updates relating to state and federal employee/contractor mandates. Gov. Charlie Baker’s executive order issued last August, requiring all state employees to be fully vaccinated, remains in effect, as does the executive order issued by the Biden administration in September requiring vaccination for all federal contractors and subcontractors.


At-home COVID Tests and Healthcare Coverage

The U.S. Food and Drug Administration has just authorized use of over-the-counter, at home COVID-19 tests. The departments of Health and Human Services, Labor, and Treasury collectively released FAQ guidance expanding upon existing requirements for group health plans to cover the cost of these tests, so long as they are taken for diagnostic purposes.

This will impose a major financial burden on self-insured employers, as they must now cover the cost of these tests either directly or through subsequent reimbursement. To incentivize direct coverage, group health plans may limit reimbursement from non-preferred pharmacies, or other retailers, to the lesser of $12 per test or the actual cost of the test if the plan provides direct coverage both through its pharmacy network and a direct-to-consumer shipping program.


Further, a group health plan may limit the number of at home COVID tests covered for each participant to no less than eight tests per 30-day period (no limit if the healthcare provider orders or administers the test following a clinical assessment).


As the pandemic evolves, employers need to carefully consider these and other COVID-related updates in order to adapt and operate accordingly.


Alexander J. Cerbo, Esq. is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; acerbo@theroyallawfirm.com


This article was published in the most recent edition of BusinessWest. Click here to read!

Modern Leadership Through Coaching

June 20, 2025
“Ability is what you’re capable of doing. Motivation determines what you do. Attitude determines how well you do it.” This quote from my Notre Dame football coach, Lou Holtz, has not only resonated with me through all aspects of my life, but it has guided me in coaching employees for success. Indeed, in playing for Coach Holtz in the late 1980s and winning a national championship with him, I learned quite a bit about leadership and accomplishing goals. The following takeaways that I learned as a young adult are what I have implemented into my professional life. While the objectives of leadership — driving performance, fostering engagement, and cultivating growth — remain constant, the ways in which we motivate our teams have evolved with each generation. What inspired Baby Boomers may not resonate with Millennials or Gen Z. Understanding these generational shifts is key to effective leadership today. In today’s work environment, coaching employees is not just a leadership tactic — it’s a strategic imperative. Remote work has reshaped communication, and employee expectations have shifted toward development and purpose. Coach Holtz’s quote serves as a simple but powerful framework for effective coaching: leaders must recognize ability, fuel motivation, and shape attitudes to bring out the best in their teams. Recognizing Ability: Know What Your People Can Do The first step in coaching is understanding each employee’s strengths and capabilities. This means going beyond résumés and job descriptions to truly observe how individuals think, solve problems, and interact with others. When leaders understand what their team members are capable of, they can align tasks and goals in ways that challenge without overwhelming. Coaching helps bridge the gap between raw potential and real-world performance. Inspiring Motivation: Help People See the Why Motivation is deeply personal. What drives one employee may not matter to another. Effective coaches take time to learn what inspires their team — whether it’s growth opportunities, recognition, or a sense of purpose. By connecting everyday work to larger goals and company values, leaders can unlock intrinsic motivation. Motivated employees are more likely to take initiative, push past obstacles, and grow within the organization. The Leader’s Role in Shaping Attitude Attitude determines how work gets done. A coach’s role is to cultivate a culture where positivity, resilience, and accountability thrive. This involves addressing challenges by considering setbacks as chances for learning and demonstrating emotional intelligence. Leaders who coach with empathy and encouragement set the tone for how their teams respond to pressure, change, and collaboration. From Feedback to Forward Momentum Coaching isn’t about occasional feedback — it’s about ongoing dialogue. Regular check-ins, clear communication, and actionable suggestions create an environment where employees feel supported and empowered. Effective coaching helps people take ownership of their growth, rather than waiting for direction. It turns feedback into fuel for development. Coaching in the Modern Workplace Hybrid teams, technological shifts, and generational changes have made coaching even more essential. Today’s leaders must be more intentional about building connections and offering guidance, especially when face-to-face time is limited. Virtual coaching tools can help, but the foundation remains the same: genuine curiosity, active listening, and consistent support. The Lasting Impact of a Great Coach Coaching done well builds more than just stronger employees — it builds stronger people. When leaders take the time to develop ability, ignite motivation, and nurture the right attitude, they create lasting value for individuals and the organization. As Coach Holtz wisely reminds us, performance is not just about what you can do — it’s about how and why you do it. Derek Brown is chief administrative officer at the Royal Law Firm, LLP and a retired, nine-year NFL veteran who also gives speeches on leadership and teamwork to accomplish goals. The Royal Law Firm LLP, is a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288. Derek Brown wrote this article which was featured in BusinessWest. Click here to visit their website.

Good Faith Engagement with ADA Accommodations Makes all the Difference

June 19, 2025
Dooley v. Nevada Gold Mines, LLC Leroy Dooley appealed the United States District Court for the District of Nevada decision to grant Summary Judgment in favor of the Defendants. Dooley alleged in his original suit that Nevada Gold Mines, LLC “NGM” violated The Americans with Disabilities Act (ADA) under failure to accommodate when they made the decision to terminate his employment after his medical leave ended. Before having to go on medical leave, Dooley worked as a Process Maintenance Tech 6. The Tech 6 role is physically demanding. An essential function of the Tech 6 role included repairing ore-processing equipment, a task that required lifting and carrying up to sixty pounds, frequently twisting, and occasionally stooping, kneeling, and crawling. Dooley’s return to work form provided by his doctor indicated he could not lift more than ten pounds, carry more than fifteen pounds, bend, squat, or twist. The United States Court of Appeals, Ninth Circuit affirmed the lower court’s decision to grant Summary Judgement in favor of the Defendants. Restructuring His Position Dooley asserts that NGM could have restructured his position and reassigned repairing ore-processing equipment to other technicians. The court concedes that role restructuring is generally a reasonable accommodation however, an employer is not required “to exempt an employee from performing essential functions or to reallocate essential functions to other employees.” Dark, 451 F.3d at 1089. Dooley also alleged that NGM could have reduced his hours as part of an accommodation while NGM continued to assert that even working part time Dooley would need to repair ore-processing equipment, an action he was still not cleared to do by his doctor even on a part time basis. Request for Assistive Equipment Dooley argued that NGM should have allowed him to use existing workplace equipment like cranes, forklifts, and dollies as assistive equipment to perform his role. Providing such equipment could typically be an accommodation but Dooley provided no evidence that he could operate the referenced equipment with his medical restrictions. Reassignment Dooley alleges that he was denied reassignment as a reasonable accommodation because he was denied reassignment to an open lab position in April 2018. However, Dooley was only cleared to work in December 2018 when the position was no longer open. NGM had other roles open at that time, and it is an undisputed fact that Dooley turned reassignment to those positions down. Per Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) “there is no duty to create a new position for the disabled employee." Dooley had turned down the positions that would have qualified as a reasonable accommodation, there was no expectation for NGM to create additional roles to accommodate Dooley. Request for Additional Leave It is undisputed that NGM provided Dooley with paid disability leave for over a year, including two extensions. Because of the length of the accommodation, Dooley was required to show that additional leave would have allowed him to heal and “plausibly have enabled [him] adequately to perform [his] job. Humphrey, 239 F.3d at 1136. Dooley could not provide such documentation because his doctor indicated that the restrictions were permanent. Dooley does not allege that more leave would have healed him but that it would have provided more time for him to “bid on positions that would come open.” However, Dooley failed to present any evidence that such positions opened within a reasonable time after his termination that he would have been able to perform. Take Aways NGM was able to provide documentation that they fully engaged with Dooley’s requests in good faith and that the process was hindered by Dooley’s lack of engagement and documentation. Awareness of ADA obligations and processes is the best pre-emptive protection against a claim of discrimination. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.