What Employers Should Know Entering Year Three of the Pandemic

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.

Alexander J. Cerbo

Alexander J. Cerbo

“It may be advantageous for employers who wish to mandate vaccination to require booster shots.”

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 Cerbo 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; [email protected]