Vaccine Mandate with Jen Berman

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home life blood. This is George G. And the time is right welcome. Today’s guest is strong and powerful Jen Berman. Jen, are you ready to do this? I am. All right. Jen is a JD she is an MBA benefits compliance Maven. She’s a CEO of M ZQ. Consulting. They are the premier ACA reporting and benefits compliance boutique, I’m excited to have you on gentle followed by your personal last more about your work and why you do what you do.

Jen Berman 0:43
Oh, thank you. So I am a wife, a mom, first and foremost, they have a a wonderful 13 year old son named Jack and an 11 year old named Abby, you know, sort of are the reason I do everything that I do. But on the work side, I am an employee benefits attorney, which basically means that it is my job to help employers to really sort of comply with the dozens of various roles that impact their ability to attract and retain employees through their their benefits programs. And we do that in lots of different ways. My company NVQ consulting helps with

Unknown Speaker 1:24
fordable Care Act compliance, and also a whole lot of different requirements, things like documents and government filings. But most recently, the work that we have been doing has been an area of mental health parity, which is very, very fulfilling, because we are helping employers make sure their health plans are providing access to mental health care in ways that makes sense and meet legal requirements. So what’s going on in the Employee Benefits world right now? And it’s great, I get to help people every day.

george grombacher 2:01
Yeah, I certainly appreciate that. And you’re working to help people implement programs that make sense, but also to not run afoul of different laws, I bet that’s a fine line.

Unknown Speaker 2:15
It can be certainly, so the employee benefits is very, very heavily regulated industry, much more so than people tend to realize. And that’s because really, employers are acting as fiduciary makes it a benefit plans, which means it’s their job to give them like a higher standard in helping to protect their employees. And that’s a little bit different than the traditional employment relationship and carries with it a whole lot of responsibilities. And so we are there to sort of help guide employers through can be a really difficult means sometimes.

george grombacher 2:53
Yeah, I appreciate that. Do you find yourself working in consulting with the actual employer themselves, or the benefits provider? A little bit of both?

Unknown Speaker 3:04
I think it’s a little bit of both. So we definitely work very, very closely with providers and brokers and advisors in the space here, typically, the folks who come to us and bring us into the equation because that’s, you know, that’s the point of contact for employers they go to, they go to their advisors and brokers to help guide them through everything having to do with their employee benefit plans. But sometimes things get for me, and the employers really need us directly. And so we’re lucky enough to be able to work sort of through those advisors, and also directly with employers.

george grombacher 3:40
Got it? And are are these laws and rules? Are they are they governed at the state level federal both?

Unknown Speaker 3:52
This sort of answer, although most of them are federal, from my perspective. So health insurance, when you’re when you’re when you’re buying an insurance product, that is those are regulated at the state level. But typically, the states are regulating the insurance companies themselves. There’s also this federal law called ERISA, which is the Employee Retirement Income Security Act. And it’s an all the way back in 1974. Long before there was Enron there were other crises along, you know, The People’s Pension plans, and the federal government got in on the act and, and not just relative to retirement savings, which is kind of easy to wrap your head around, right? You got other people’s money, so you have to take care of it. But also really anything that you’re providing to employees, so medical insurance, dental, vision, life insurance, disability insurance, even pet insurance can be regulated by these federal rules in certain circumstances.

george grombacher 4:50
Yeah, that certainly makes sense. All right. So business is hard enough as it is it is really hard to make a profit and it’s hard to them. hire employees, and then all of a sudden, a vaccine or a pandemic hits and then vaccines come on the scene. And then the government says, not only are they here, but we’re going to mandate that if you have more than XYZ employees, and that gets 100, that you have to that they have to get vaccinated or do weekly testing. I mean, I just I do not employ 100 plus people. But I mean, just the complexity of that, and and is it actually going to go into effect? And how do I handle it? You must get this question 24,000 times a day.

Unknown Speaker 5:42
I do. Indeed, it’s been certainly the topic of the biggest topic of conversation for me really, over the past couple of months ever since President announced it was coming in the beginning of September. And it’s a doozy. It could do me and you know, we’re not sure we’re ever having this conversation yet. It’ll actually go into effect, it’s been challenged in the federal courts. So we’re waiting to see what happens there. I think, ultimately, it’s going to get to the Supreme Court, and they’ll be the ones who decide. But in the meantime, employers really need to be acting to be in a position to comply with these rules. Very, very short timeline on them. And I want that as being asked of employers. So you’re absolutely right, that ultimately the rule is, you know, you need to be vaccinated or tested on a weekly basis. But there’s a whole lot of detail. And honestly, you know, this is the place where the devils in the detail. So one example of that is that employer the way you can do that employers need to out if their employees are vaccinated at all. So, you know, that’s step one. And that’s required under the aminos guidance by December 6. And here’s the thing about that. It’s not as simple as just saying, Hey, are you vaccinated, there is a requirement under the regulations, really an emergency temporary standard, about those level, that level of detail that employers collect, you know, the vaccination status of their employees, and actually the documentation of that vaccination status of copies of cards or attestation, under the penalty of perjury. But this is an example of a place where other laws come into play, too. So that’s medical information. And there’s a whole set of rules governing privacy of medical information, it’s actually not HIPAA. Although you can, you know, most people think, medical information, or these rules or anything, the Americans with Disabilities Act. But either way, there’s a whole lot of guidance that needs to be kept in a separate location needs to be confidential, and only certain folks in HR love to see it. So employers don’t typically collect high volumes of medical information from all of their employees. So when you think about something, you know, a law came out the gate 30 days for employers to comply. And suddenly you think about, you know, a huge national employer, even one that that you know, 100 employees, think about the logistics, training, management, collecting the information, keeping it confidential. It’s not simple. It’s ripe with opportunity for employers to them trouble, particularly around something that’s such a hot button issue in our society. People feel very, very strongly about vaccines in both directions. And that just opens up a world of risk for employers and squarely on their shoulders.

george grombacher 8:50
Thanks a lot, government.

Unknown Speaker 8:54
I know I spend most of my career most of my day. wasn’t my idea, guys.

george grombacher 9:03
Just the second, the second order impacts of all of this, I mean, we can talk about, we’re not going into the second order impacts of COVID itself. But now, my goodness, yeah, I’ve got 100 employees that some are in the office, and some are maybe they’re all virtual. And now I need to collect actual documentation that they have been vaccinated, and I need to do that, in a way. Is there an agreed upon way that that that that happens, or am I just sort of doing best practices? And is there an agreed upon way where or place where I store this? Or is it again, just the best practice?

Unknown Speaker 9:44
Best practices? I mean, there’s some rules around you know, what to do if you can’t get the vaccine or alternative to vaccines, how to things like that, but the actual methodology, you know, that’s Something that the employers kinda have to figure out on their own. And so I’ve been spending the better part of the past couple of weeks, having those conversations and vetting out, you know, vendors who are out there launching for resellers, and some of them will be fantastic, and other than others of them will forget one model or another. And it’s a really hard place to be I have had this conversation with one HR leader earlier this week. And honestly, she was just on the verge of tears. She’s like, I just don’t know what to do. Like, I just don’t know, what does he know, she was gonna cross hairs between owners that didn’t want to have to deal with it, knowing that you had to comply and not having a resource allocated for it. It’s just hard. Whatever you think of it from a political or policy perspective, it’s so hard on people to get them.

george grombacher 10:52
Yeah. And as somebody, and I’m sure you’re the same way, in fact, I can almost guarantee it, you’re very cognizant of the value of your time and the value of your attention. And, again, I’m not making a judgment on this one way or another, but the cost of hours and time and then the opportunity cost of dedicated resources to comply with a rule that may never go into effect. I mean, I can’t even quantify how much that must be.

Unknown Speaker 11:21
Interesting, because, really, I think that the government knew that. So when you read the actual 480 pages, that the actual guidance is, and they talk about the how you count to 100? Because in my world, counting is always the question, right? How do I know if I’ve hit this threshold 100 For this purpose includes the whole organization, including people who work from home full time, other related companies in certain cases. And it also includes part time employees and treats them as like a whole person for purposes of counting to 100, which is not to just count part time was like, not how we usually like count things. Right. And the reason that they state right, in that guidance from OSHA is, we think that if you have 100 employees, you’re big enough to absorb this burden. You know, so the government’s aware. But nonetheless, this is the decision that’s been made.

george grombacher 12:22
That is super interesting. Okay. So I was wondering, I wonder why 100? And there you go.

Unknown Speaker 12:29
You know, and, yeah, so and the policy, you know, it’s an interesting piece here. And I want to take a minute, because I think a lot of people are confused as to why this is happening, and what the court case is all about and stuff like that. But the violin administration has been pretty clear that their goal here is to get as many people vaccinated as possible. And so the reason that we’re seeing this come through as an employer based mandate is because they believe that they have jurisdiction to do it. So under our constitutional system, sort of the way that it’s set up, the federal government only have powers that are expressly given to it. And all other powers belong at the state level. So in order to do anything, the federal government has to find some Nexus are some basis for coming to the conclusion that they’re allowed to do something. And in this case, they’re using their ability to regulate safety in the workplace, as the argument as to why they’re allowed to do this. And that’s why it’s landing on employer shoulders, it’s because it’s something that the federal government is allowed to do, or something that the federal government believes they’re allowed to do. And that’s what this Court case is really about is does the federal government actually have this power? So right now, it’s in the Fifth Circuit, there’s also cases and other places in the country. As I mentioned earlier, it’s probably going to get to the Supreme Court. But ultimately, the issue at play is can the federal government do this? And the reason that we’re in this, you know, in this debate, as opposed to a different version, like a federal vaccine mandate is the power under the United States Constitution to say everybody has to get vaccinated.

george grombacher 14:20
Got it? Oh, interesting. Okay. So no, not at all. That’s, that’s totally fascinating. Okay. So the government does not clearly have the power to say, all the citizens, the United States of America must be vaccinated. We are, it’s it’s legally enforceable. So they looked at the different mechanisms potentially available or avenues to get as many people vaccinated and they said, Okay, you know, a really large chunk of the American population is employed at an organization that has 100 or more employees. Can we mandate it that way? And they decided that the answer to that question is yes. And now that’s going to be adjudicated, potentially all the way up to the Supreme Court.

Unknown Speaker 15:09
Exactly. And there’s another one the other, the other vaccine mandate is for healthcare providers, and government contractors. That mandate is based on federal funding. So those two are about basically the federal government is saying federal contractors or people who get lots of money through Medicare, we’re just not going to pay you any money unless you make all your employees get vaccinated.

george grombacher 15:35
So that’s also going through the the OSHA route or this is separate.

Unknown Speaker 15:39
That’s separate from OSHA, that’s just another vaccine mandates. It’s in place that governs anybody who works for any company that gets federal dollars through federal contracting. It’s more complicated than that. Go. For anybody who had any problems through Medicare.

george grombacher 15:58
Wow. Okay.

Unknown Speaker 16:00
Basically, what they said is, employers, hey, you

george grombacher 16:04
got it. Okay. And has has has that gone into effect?

Unknown Speaker 16:10
To go into effect from the same timeline as the OSHA stuff at this point.

george grombacher 16:13
So that could also be challenged?

Unknown Speaker 16:18
It could be I think that that one’s probably a little stronger from a legal standpoint. But it’ll be interesting to see how all of this plays out in the court.

george grombacher 16:27
Got it. Okay, interesting. So, just the last couple of minutes that we have your your advice or quick counsel to, to employers, to HR folks who are listening to this.

Unknown Speaker 16:47
You don’t have time to wait and see what happens in the courts, unfortunately. So it’s really, really important that you prepare to do that. I can’t sit here and tell you for sure, one way or the other, this is ever going to go into effect. But what I can tell you is right now it’s sort of the middle of November, we have a holiday one that comes every year in November coming up. And the compliance deadline, the first compliance deadline under this rule is December 6. So whether this ultimately goes into effect or not, is a question mark. But you can be working on this right now. There’s really just no other choice, there’s really significant penalties for not doing that, on the order of a little over $13,000 per violation. This could be every employee in this case, or $136,000 per willful violation if you just ignore the thing. So whether you like it or not, and whether you think the courts are going to do it or not. Or stop it or not. Please repeat the planning.

george grombacher 17:52
Nice. All right, and to get resources for how in the world to actually make that happen. Where Where can they get that? I want shameless plugs.

Unknown Speaker 18:05
You want shameless plug. Okay, well, shameless plug for myself. We are NVQ consulting, and we’re available at m ZQ consulting.com. We’ve got resources for all sorts of Employee Benefits, compliance. Related means they’re less shameless, but equally helpful, is there’s a lot of materials on the OSHA website. And, you know, the the policy requirement and a a notice requirement and the federal government did put out resources on that for for employers. So another good place to go.

george grombacher 18:45
Yeah, I don’t know very much about what the OSHA website looks like. But I bet that they’re awesome at policy requirements and notice requirements. So

Unknown Speaker 18:55
ah, you know, it’s their wheelhouse, that’s for sure. I love it.

george grombacher 19:02
Well, Jen, thank you so much for coming on. Give us the website one more time.

Unknown Speaker 19:07
is m v, Q, married Libra Queen and the cube whose sole thing.com. Love it.

george grombacher 19:16
Well, if you enjoyed this as much as I did, show genuine appreciation and share today’s show with a friend who also appreciates good ideas, go to M ZQ consulting.com. And check out the great resources that Jen and her firm have to offer and think that we will try to get this show out ASAP. So we will just wait to see what happens but even moving forward, whether it goes through or it doesn’t. Just knowing where you can find great resources is always a helpful thing. Thanks. Good, John. Thank you. And until next time, keep fighting the good fight. We’re all in this together.

Transcribed by https://otter.ai