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!

Client Update: Supreme Court Ends Nationwide Injunctions—What Employers Need to Know

July 25, 2025
On June 27, 2025, the U.S. Supreme Court ruled in Trump v. CASA that federal district courts cannot block executive orders for the entire country. The Court held that such broad injunctions exceed the authority Congress granted under the Judiciary Act of 1789. Courts may now only stop enforcement for the parties in the case—not for everyone else. What Happened in the Case President Trump issued Executive Order 14160 in early 2025. It denies birthright citizenship to children born in the U.S. if neither parent is a citizen or lawful permanent resident. Multiple lawsuits followed. Three federal courts blocked the order nationwide. The Supreme Court disagreed. It sent the case back and told the lower courts to revise the injunctions to cover only the named plaintiffs. The Court did not decide whether the order itself violates the Constitution. It ruled only on how far a court’s injunction can reach. Why It Matters to Employers The ruling affects how quickly and widely federal courts can stop controversial policies, especially during fast-changing political cycles. Employers have often relied on national injunctions to pause new mandates on wages, workplace safety, pay transparency, and non-compete agreements. This decision limits that option. The Court said nothing about injunctions under the Administrative Procedure Act, which governs agency rules. But the opinion raises doubts about whether even those can continue on a nationwide scale. Justice Kavanaugh suggested they might, but the Court left that question for another day. What This Means for You No nationwide protection unless you sue If your business is not part of the case, you likely cannot rely on someone else’s win. You must litigate directly to get relief. Rules may take effect in one state and not another A federal court in Texas may block a rule, while a court in New York upholds it. National companies may face conflicting rules and inconsistent enforcement. Trade groups cannot shield you Even if your industry association wins an injunction, it may apply only to their members or to the parties named in the lawsuit. Older rulings may now shrink Past national injunctions—on vaccine mandates, non-compete bans, overtime rules, or joint-employer standards—could be challenged or narrowed based on this ruling. More class actions are likely Some plaintiffs may now push for class certification to restore broader relief. Employers could face more complex litigation as a result. Next Steps for Employers Identify any current or past rules your business has relied on that are being blocked nationwide. Confirm whether you were covered by name or just assumed you were protected. Reassess your risk exposure for pending federal actions under OSHA, the EEOC, the DOL, or the NLRB. Monitor APA-based injunctions to see whether courts continue to grant broad relief under that statute. Consider joining strategic litigation early if new executive orders or agency rules would harm your operations. You cannot assume another company’s lawsuit will protect you. The Court narrowed that path. To block a federal mandate, you may now need to act alone—or join the fight directly. Michael P. Lewis is an attorney at The Royal Law Firm with experience advising clients through the litigation process. Michael helps employers resolve workplace challenges with focus, precision, and judgment. He counsels and defends businesses across Massachusetts and Connecticut, handling matters involving discrimination, harassment, retaliation, wage and hour claims, restrictive covenants, and breach of contract. His practice includes litigation in state and federal courts and before administrative agencies. 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.

The Royal Law Firm recently welcomed Michael P. Lewis to its team!

July 14, 2025
Welcome Michael!