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!

The Royal Law Firm recently welcomed Zeno Temple to its team!

By The Royal Law Firm • September 15, 2025
Welcome Zeno!

Can I Fire Someone for That? Common Myths That Get Employers Sued

By The Royal Law Firm • August 19, 2025
Employers regularly wonder: “Can I fire someone for that?” You might assume the answer is simple, especially in an at-will state like Massachusetts. But the reality is more complex. Missteps can land your business in court. Here’s how to avoid them and keep your company focused on growth, not litigation. Myth: “At-Will Means Any Reason Goes” At-will employment allows termination without contractual cause. Yet anti-discrimination laws and retaliation protections still apply. Even a valid reason, like poor performance, becomes risky if the employee recently complained about harassment, requested an accommodation, or reported a safety issue. Terminating soon after a complaint invites legal trouble. For example, consider firing Sarah for repeated tardiness. But what if she reported sexual harassment a few weeks earlier? Timing alone can create exposure. Document performance issues as they arise. Also, check if the employee recently returned from Family and Medical Leave (FMLA) or Paid Family and Medical Leave (PFML). A Springfield auto repair shop faced a claim after firing a worker the day after he returned from PFML to care for his newborn. The company blamed tardiness, but the timing triggered months of legal headaches. Myth: “No Documentation Needed” Some employers assume that no paperwork is necessary under at-will rules. That approach creates unnecessary risk. Without records, even lawful firings appear questionable. Weak evidence damages credibility. Imagine Tom, a low performer who never received formal feedback. If you fire him after years of positive reviews, expect scrutiny. Always provide timely written warnings and accurate performance evaluations. Keep emails, attendance records, and coaching notes. Would your records persuade a jury that the termination was justified? Myth: “We Treated Everyone Fairly” Fair treatment requires consistency. If one employee is fired and another is only warned for the same violation, questions follow. Consider two salespeople, Mike and Jose, both caught inflating sales numbers. Mike receives a warning. Jose gets fired. If Jose claims racial bias, inconsistent discipline strengthens his argument. Review prior disciplinary decisions. Can you show a clear record of equal treatment? Myth: “We Can Share the Reason Widely” Managers sometimes explain a termination too broadly, believing transparency protects the company. In reality, public disclosure creates legal risk. An employee fired for theft sued his employer after leadership announced it to the entire staff. Even truthful statements, shared excessively or with ill will, can spark defamation claims. A local example: a Chicopee retailer emailed all employees naming a worker fired for alleged cash shortages. That email became Exhibit A in court. Limit disclosure to those who truly need to know. Avoiding Retaliation Claims Retaliation is the most common EEOC claim. Firing someone after they complain about discrimination, request leave, or raise pay concerns often leads to lawsuits. Subtle actions can count too—cutting hours, assigning undesirable shifts, or excluding them from meetings. Did Lisa report a wage issue last week? If she now gets the worst shifts, her attorney will call it punishment. Train managers to pause and ask: “Does this look like payback?” In one Springfield restaurant, a server who complained about tips was fired days later for “attitude.” The MCAD viewed the timing as retaliation, and the case settled quickly. Managing the Termination Meeting Professionally How you fire someone matters. Keep the meeting short and calm. Speak plainly. Avoid debate. Bring a neutral witness, usually HR. Disable system access and collect company property immediately. For remote workers, coordinate IT to end access during the call. Have you prepared your team to stay composed when an employee gets angry or upset? A concise, professional exit reduces emotion and litigation risk. Reducing Risks Before They Occur You can prevent most legal problems with proactive steps. Train managers to document consistently. Encourage employees to raise concerns early, and respond appropriately when they do. Also, follow Massachusetts requirements: final wages and accrued vacation must be paid promptly, sometimes the same day. Missing or delaying a payment can trigger penalties. Review whether your managers apply standards uniformly. Track disciplinary trends by department or supervisor. In one Holyoke warehouse, inconsistent discipline across shifts led to multiple claims that could have been avoided with routine audits. Quick Pre-Termination Checklist Document the issue in writing. Confirm whether the employee recently exercised protected rights (complaint, FMLA, PFML, workers’ comp). Ensure similar cases were handled consistently. Complete a fair investigation and allow the employee to respond. Prepare final pay and unused vacation in compliance with Massachusetts law. Bottom Line Employee terminations happen. Legal trouble does not have to. Careful documentation, consistent actions, and thoughtful communication protect your business. Before acting, stop and ask: have we done this right? Taking these steps helps you confidently answer, “Can I fire someone for that?” That answer should never rest on guesswork. Michael P. Lewis, 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. 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. Michael P. Lewis wrote this article which was featured in BusinessWest. Click here to visit their website.