Get Vaxxed or Get Axed? Get to Testin’ or Get to Steppin’? SCOTUS Finally Weighs In . . .

While we hoped to have another holiday-themed newsletter, unfortunately our belated “National Sticker Day” jokes just didn’t adhere. In any event, our headliner for this week is the US Supreme Court’s block of the OSHA private employer vaccination mandate. Also in this edition, our predictions on how the promise of a free supply of COVID-19 tests will pan out and how New York and New Jersey are helping you plan for retirement (whether you like it or not).

The Supreme Court Weighs in on OSHA Vaccination Mandate

The nation (ok fine: employment lawyers) is buzzing after the US Supreme Court’s decision yesterday blocking OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”), which required that private employers with 100 or more employees implement a vax-or-test policy. Our nation’s highest court determined that OSHA doesn’t have the power to “regulate public health more broadly,” and essentially overreached by “requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees.” According to the dissent, OSHA is better equipped to make decisions regarding safeguarding workplaces than the Court. The decision did, however, uphold the vaccination mandate for healthcare workers.

What now? Honestly, this decision may be irrelevant. The vast majority of employers this would cover are either in a state/city that (a) already requires employers to mandate some form of vax or test or (b) restricts such mandates. Or, they have already developed their own corporate philosophy on vaccination policies. For everyone else: if you were waiting on the decision and communicated that fact to your employees, let them know that, in light of this decision, you will not be implementing a mandatory vaccinate or test policy; if you were waiting on the decision and did not communicate your intentions to your employees, just keep on truckin’.

CDC’s Latest Guidance Updated Yet Again to Include Testing Recommendation

As you likely know by now, the CDC recently shortened certain COVID-19 quarantine periods. Up until a few days ago, however, the CDC was silent as to whether it would recommend that employers or other establishments require negative tests before someone can return. Now, the CDC recommends that an individual take an antigen test towards the end of their five-day isolation, and, if negative, that individual can end isolation (so long as they wear a mask through day 10). We’ll keep you posted on what comes next, but we wouldn’t be surprised if the CDC updates its guidance between now and our next newsletter. And remember that the CDC’s recommendation is just that – so make sure to check those state and local rules for what companies are actually required to follow.

Free COVID-19 Tests for All With Private Insurance – If You Can Find Them.

Hoarders rejoice! In an effort to expand access to free COVID-19 testing, the Biden administration announced a program that would require private insurance companies and group health insurance plans to cover the cost for eight over-the-counter COVID-19 tests per month for each individual, starting January 15, 2022. Now, actually finding a test may prove to be more difficult than paying for one.

New York and New Jersey Create New Retirement Plan Mandates

If COVID-19 has you dreaming about retirement – good news! Both New York and New Jersey now have retirement-related mandates. In New York, all private businesses (including non-profits) with at least ten employees and who have been in business for at least two years are required to provide their employees with retirement plan options pursuant to the New York State Secure Choice Savings Program. Employers are not required to contribute to the plan or otherwise pay any costs other than the administrative fees. Upon enrolling, employees will contribute 3% of their wages but can modify their contribution levels. New York hasn’t yet announced when the enrollment period will begin, or issued any compliance/enforcement requirements, but we suspect that additional guidance will come out early this year.

Similarly, New Jersey’s deadline to implement a similar program is March 28, 2022 (with nine months from that date to complete the roll out). Pursuant to NJ’s Secure Choice Savings Act, employers with 25 or more employees who have been in business for at least two years must either implement a Secure Choice Program or offer a private retirement plan to its employees. Here’s what we know about the program:

· New employees must be enrolled within three months of their date of hire.

· 3% of pretax earnings must automatically be withheld for those who don’t opt out of the program.

· Employers cannot match contributions.

· The maximum contribution for employees 50 and over is $7,000.

· Employers are subject to penalties of $100 per employee in beginning phases of the program, increasing to $250 per employee for the third/fourth years, and $500 per employee for the fifth year and beyond.

· Employers who collect employee contributions, but fail to remit contributions to the program are subject to a $2,500 for a first offense and $5,000 for each subsequent offense.

As we gear up for spring (too soon?), please gear up for these new rules. And as always, if you’ve got questions – you know we’ve got answers.

Damien + Brian


Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit

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