1 HUMAN CAPITAL PRACTICE ALERT: HEALTH CARE REFORM BILL February EMPLOYER PAY OR PLAY EXCISE TAXES WHERE ARE WE NOW? Starting in 2014, large employers may incur the so-called pay or play excise tax unless they meet certain standards for offering health coverage to their full-time employees. An employer can control its exposure to the pay or play excise tax, but doing so generally requires measuring the employer s workforce and individual workers hours in various ways, as well as evaluating any health coverage the employer offers against certain benchmarks. Recent proposed regulations under the pay or play provisions (along with a related set of questions and answers) provide important details on the measurements and evaluations that determine whether an employer might incur the excise tax. The rules governing the pay or play excise tax are complex. Even determining which employees are considered full-time calls for detailed analysis. For larger employers with multiple plans and employment arrangements, it is difficult to overstate how complex applying the pay or play rules can become. For most employers, administering plans to avoid the pay or play excise tax will be manageable, but the employer first needs to determine which of the many options for applying the rules are most advantageous. Willis National Legal & Research Group has prepared a comprehensive guide regarding the pay or play excise tax for its clients. The guide explains our current understanding of how the pay or play excise tax works and the options for applying the pay or play rules that employers might find most advantageous. We provide a high-level summary of the guide here. Willis clients may access the guide Health Care Reform: Employer Pay or Play Excise Taxes Employer Guide on Willis Essentials (log-in credentials required) or may request a copy from their Willis Human Capital Practice representative. PAY OR PLAY BASICS Despite the pay or play shorthand reference, these provisions are best thought of as including two separate excise tax provisions. One excise tax (we call it the cliff ) usually will be very large if it applies, but it is readily avoidable. The other (which we call the drop-off ) usually will be small by comparison, but it is more difficult to avoid completely. These excise taxes apply only to large employers (50 or more full-time employees (or equivalents) in the last calendar year). Also, neither the cliff nor the drop-off applies unless the employer receives a certification that at least one of its full-time employees has obtained coverage through an insurance exchange and has qualified to receive premium assistance or cost-sharing reduction with respect to that coverage. Very generally, full-time employees are those employed for an average of at least 30 hours of service per week.
2 n n The cliff may apply if an employer fails to offer minimum essential coverage (which includes almost any employersponsored medical benefits, regardless of cost or value) to substantially all of its full-time employees and their dependents. The cliff excise tax is $2,000 annually $ per month for every one of an employer s full-time employees, (depending on corporate structure, up to 30 of the employer s full-time employees are disregarded). If an employer avoids the cliff, it may still incur the drop-off if it does not offer each full-time employee minimum essential coverage that is both minimum value (at least 60% actuarial value) and affordable (no more than 9.5% of the individual federal poverty level or the employee s household income, W-2 pay or rate of pay). The drop-off excise tax is $3,000 annually $250 per month for each full-time employee for whom the employer receives a certification of premium assistance or costsharing reduction, unless the cliff would be a lower amount. The applicability and calculation of these excise taxes are explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). PAY OR PLAY EFFECTIVE DATE The pay or play provisions generally are effective for all employers and plans on January 1, 2014, regardless of plan year, so a large employer may incur an excise tax for January 2014 and later months if coverage meeting the applicable standards is not offered for those months. An employer that wishes to determine whether it is a large employer for 2014 or to identify its full-time employees using the look-back measurement method (as described below) must track employees hours of service during 2013 in order to implement on January 1, (A complex transition rule may allow some noncalendar year plans to delay compliance until the beginning of their 2014 plan year, but we do not recommend that employers rely on that rule without obtaining a legal opinion on its applicability.) ANALYZING AN EMPLOYER S OPTIONS UNDER THE PAY OR PLAY PROVISIONS The pay or play excise taxes require many employers that cannot avoid the taxes to evaluate trade-offs between cost and administrative complexity. To complicate matters, the trade-offs are not the same for all employers, varying based on the size and characteristics of the employer s workforce, as well as available coverage options. ONLY LARGE EMPLOYERS MAY INCUR THE PAY OR PLAY EXCISE TAX An employer is not subject to any pay or play excise tax, regardless of what coverage it does (or does not) offer, unless the employer (including certain affiliated companies) is a large employer (50 or more full-time employees [or equivalents] during the last calendar year). Because part-time employees essentially count as fractions when making the large employer determination, a company that has only a few employees working 30 or more hours per week may be a large employer. There is no exemption from the pay or play provisions for tax-exempt, charitable, religious or governmental organizations all may be large employers. For many employers, it will be apparent that they had 50 or more full-time employees during the last calendar year. Other employers may choose to presume that they 2 Willis North America 2/13
3 are large employers or may count their employees hours of service during the previous calendar year to make the determination as explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). Under a transition rule, the determination of whether a company is a large employer for 2014 may be made based on any period of at least six consecutive calendar months during OFFERING ALL EMPLOYEES MINIMUM ESSENTIAL COVERAGE THAT IS AFFORDABLE AND MINIMUM VALUE ALWAYS WORKS An employer will incur neither the cliff nor the drop-off if it offers all of its full-time employees minimum essential coverage that includes dependent coverage and, with respect to the employees coverage only, the minimum essential coverage is both affordable and minimum value. To limit such coverage to full-time employees, an employer must identify those full-time employees, which may involve significant administrative difficulties (see discussion below). For most employers, identifying full-time employees will be the most difficult task in connection with the pay or play provisions. An employer could avoid those difficulties, yet still foreclose the possibility of incurring a pay or play penalty, if it offered minimum essential coverage that is both affordable and minimum value to all of its employees regardless of hours worked or full-time, part-time, seasonal, temporary or other status and offered minimum essential coverage to dependents. This approach may be more practical than many would anticipate, because it appears that minimum essential coverage that just meets the affordability and minimum value standards is less costly than most employer plans are currently. This all in approach is the only way we have identified to avoid the difficulties of identifying full-time employees while ensuring that the pay or play excise tax will not apply. As with many terms and phrases used in the pay or play provisions, full understanding of the phrase offering full-time employees minimum essential coverage that is both affordable and minimum value requires extensive explanation of detailed rules. Those rules are explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). OFFERING COVERAGE TO FULL-TIME EMPLOYEES IS SUFFICIENT BUT MAY BE DIFFICULT Only full-time employees coverage is considered when determining whether an employer has incurred a pay or play excise tax. While part-time employees may be excluded, an employer that wishes to exclude any of its employees (including part-time, seasonal, temporary, etc.) from coverage will need to be able to identify and document the excluded employees part-time status in order to manage its exposure to the pay or play excise taxes. For each employee to whom the employer does not offer coverage, the reason should be documented. IDENTIFYING FULL-TIME EMPLOYEES A full-time employee generally is one who has an average of at least 30 hours of service per week during a calendar month. The determination of hours of service and full-time or parttime status is made on an employee-by-employee basis, generally using actual hours of service. An employer s classification of an individual employee as full-time, part-time, seasonal, temporary, etc., has almost no influence on whether the employee is a full-time employee for purposes of the pay or play excise tax. Because any employee may be a full-time employee based solely on hours of service, all employees hours of service must be measured 3 Willis North America 2/13
4 to reliably identify all of an employer s full-time employees. The rules regarding the hours of service that must be counted and the definition of full-time employee are explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). MOST EMPLOYERS WILL USE THE LOOK-BACK MEASUREMENT METHOD Most employers will need to use the look-back measurement method for identifying full-time employees (a less difficult measurement method may work for employers with very simple situations). Very generally, this method calls for an employer to measure each employee s average hours of service over a look-back measurement period that is between three and 12 months long, assign each employee full-time or part-time status based on that measurement, and continue that status throughout a period that follows the measurement period and is usually the same length (a stability period). Between the measurement period and the stability period, an employer may have an administration period of up to 90 days. Otherwise, the stability period must start immediately after the measurement period. EMPLOYER CHOICES WHEN USING THE LOOK-BACK MEASUREMENT METHOD Under the look-back measurement method, the employer chooses the length of the measurement, administration and stability periods, as well as the dates on which these periods begin and end, subject to a number of restrictions. There are separate rules for applying the look-back measurement method to ongoing employees and to new employees, and an employer must use this method with respect to ongoing employees in order to be able to use it for new employees. Both sets of rules contain a daunting number of special rules, exceptions and options. There are also restrictions on changes to the measurement, administration and stability periods. For example, an employer may not change a measurement period nor its associated stability period once the measurement period has started. The best way to explain the look-back measurement method for both new employees and ongoing employees is by providing examples of its operation. In our employer guide to the pay or play excise tax (see information on obtaining a copy above), we provide multiple examples, illustrating various permutations of the look-back measurement method as it applies to both new and ongoing employees, as well as the many options and special rules that apply when using the look-back measurement method. The guide also explains a transition rule allowing an employer to delay the start of its first look-back measurement period without shortening the associated stability period, so long as the measurement period lasts at least six months and begins no later than July 1, Willis North America 2/13
5 Applying the Look-Back Measurement Method to New Employees May be Tricky When an employer can use the look-back measurement method for a new employee, coverage for that employee may be delayed for more than 13 months while the employer measures the employee s hours of service, determines full-time or part-time status and offers coverage as appropriate. This delay will not result in a pay or play excise tax (or violate the 90-day limit on waiting periods that is effective for plan years starting on or after January 1, 2014) if it is applied to a variablehour employee or a seasonal employee. For other employees those who are reasonably expected to work at least 30 hours per week on average coverage must be offered in a manner that complies with the 90-day limit on waiting periods. This means that identifying an individual as a variable-hour or seasonal employee usually causes a significant delay in health coverage becoming effective. As a result, whenever an employer elects to treat an individual as a variable-hour employee or seasonal employee, a best practice is documenting the circumstances that led to that conclusion. The circumstances in which a new employee may be treated as variable-hour or seasonal are explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). OFFERING DIFFERENT COVERAGE TO DIFFERENT GROUPS OF FULL- TIME EMPLOYEES Employers that must expand the group of employees eligible for coverage in order to avoid the pay or play excise taxes may find that they wish to offer different levels of coverage or contributions to different groups of employees. Nothing in the pay or play provisions requires that similar levels of coverage or contributions be offered to all full-time employees. Employers that have self-insured plans are subject to nondiscrimination rules, however, and those rules may affect an employer s ability to implement these types of arrangements. (Similar rules will become effective for insured health plans after the relevant agencies issue implementing regulations.) Cafeteria plan nondiscrimination testing also may be affected if required contributions for health coverage are paid on a pre-tax basis. PLAYING AND PAYING Offering coverage to employees still paying the pay or play excise tax may sound like the worst of all possible results, but many are concluding that doing so makes sense financially. Various options for offering coverage and their effect on the pay or play excise tax calculation are explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). STEP BACK FROM THE CLIFF Most employers have concluded that simply offering no coverage (i.e., incurring the cliff ) is not viable because the cliff penalty is so steep and the cost of offering minimum essential coverage that prevents it is so minimal. Even an employer that prefers to offer no coverage should strongly consider offering minimum essential coverage, with NO employer contributions, to all of its employees and their dependents just to keep open the possibility of minimizing the pay or play excise tax. This failsafe option is explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). BE CAREFUL ABOUT THE DROP-OFF Employers offering minimum essential coverage may still incur the drop-off, and most employers are planning to offer coverage that prevents both the cliff and the drop-off from applying. As they work with the various pay or play definitions and concepts, however, some employers are finding that it may make sense financially to risk incurring the drop-off with respect to some employees (e.g., by offering minimum essential coverage that meets the standards, except that it is not affordable for some lower-paid employees). An employer might encounter this situation if it wished to maintain uniform employee contributions across its workforce but found that the cost of making the coverage available to every full-time employee at the cost that is affordable for its lowest-paid full-time employee is prohibitive. An employer in this situation might choose higher required employee contributions, so the coverage offered would not be affordable for some of the employer s lower-paid employees. In that case, the employer may incur the drop-off penalty ($250 per calendar month for each full-time employee for whom the employer receives a certification of assistance) with respect to employees for whom the coverage is not affordable. 5 Willis North America 2/13
6 BALANCING AFFORDABILITY AND MINIMUM VALUE Affordability is determined on an individual basis. Just because coverage is not affordable for one full-time employee does not mean that it is unaffordable for all full-time employees. Minimum value is different. The actuarial value of coverage is the same for all individuals who are offered that coverage. This means that an employer offering coverage that does not provide minimum value may incur the drop-off penalty with respect to every one of its full-time employees for which it receives a certification of assistance, even if the cost of that coverage is very low. Therefore, when considering trade-offs between the value of the coverage offered and the cost of that coverage, an employer will generally minimize its chances of incurring the drop-off if it leans toward higher premiums rather than lower value. At the same time, employers purchasing insurance coverage may find that participation and contribution requirements imposed by carriers put them in the position of offering minimum essential coverage that does not provide minimum value, but doing so at very low cost to employees. Employers in this situation may still benefit from offering minimum essential coverage that has low actuarial value because they will not incur a pay or play excise tax with respect to employees who accept and pay for coverage. The very low cost of minimum essential coverage that has low actuarial value may make it appealing to many of an employer s lowest-paid employees, and those that accept the coverage will be ineligible for premium tax credits or cost-sharing reductions. That, in turn, will prevent the employer from incurring the drop-off with respect to those employees. The options available to employers and the trade-offs implicit in each are explained in our employer guide to the pay or play excise tax (see information on obtaining a copy above). WHAT COMES NEXT? While the new proposed regulations are a giant step forward in understanding exactly what employers must do to avoid the pay or play penalty, the preamble to the regulations identified a number of items to be addressed in future guidance. Those include n n n Defining seasonal employees for purposes of the look-back measurement method Certain special issues in applying the rules to particular employers, such as churches, governmental entities and temporary staffing organizations, among others Additional rules on counting hours of service when employees have certain types of unpaid absences from employment As always, Willis National Legal & Research Group will monitor developments and provide information as they occur. 6 Willis North America 2/13
7 KEY CONTACTS U.S. HUMAN CAPITAL PRACTICE OFFICE LOCATIONS NEW ENGLAND Auburn, ME Bangor, ME Boston, MA Burlington, VT Hartford, CT Manchester, NH Portland, ME Shelton, CT NORTHEAST Buffalo, NY Morristown, NJ Mt. Laurel, NJ New York, NY Norwalk, CT Radnor, PA Wilmington, DE ATLANTIC Baltimore, MD Knoxville, TN Memphis, TN Metro DC Nashville, TN Norfolk, VA Reston, VA Richmond, VA Rockville, MD SOUTHEAST Atlanta, GA Birmingham, AL Charlotte, NC Gainesville, FL Greenville, SC Jacksonville, FL Marietta, GA Miami, FL Mobile, AL Orlando, FL Raleigh, NC Savannah, GA Tallahassee, FL Tampa, FL Vero Beach, FL MIDWEST Appleton, WI Chicago, IL Cleveland, OH Columbus, OH Detroit, MI Grand Rapids, MI Willis North America 02/13
8 Milwaukee, WI Minneapolis, MN Moline, IL Pittsburgh, PA Schaumburg, IL SOUTH CENTRAL Amarillo, TX Austin, TX Dallas, TX Denver, CO Houston, TX McAllen, TX Mills, WY New Orleans, LA WESTERN Fresno, CA Irvine, CA Las Vegas, NV Los Angeles, CA Phoenix, AZ Portland, OR Rancho/Irvine, CA San Diego, CA San Francisco, CA San Jose, CA Seattle, WA The information contained in this publication is not intended to represent legal or tax advice and has been prepared solely for educational purposes. You may wish to consult your attorney or tax adviser regarding issues raised in this publication. Oklahoma City, OK Overland Park, KS San Antonio, TX Wichita, KS Willis North America 02/13