Guidance issued on employer shared responsibility requirements

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1 Guidance issued on employer shared responsibility requirements The shared responsibility requirements are one of the most significant provisions that employers need to address under the Affordable Care Act (ACA). Failure to satisfy these requirements could subject employers to significant penalties starting in The IRS has issued guidance describing the shared responsibility requirements and defined significant terms, like full-time employee. Pending the issuance of final regulations or other guidance, employers can rely on these proposed regulations now to strategize and prepare for compliance with the shared responsibility mandate. In this article: Background Concept of full-time employee Hours of Service Determining large employer status Identifying full-time employees Transition relief Shared responsibility in controlled groups Play or pay shared responsibility requirement Play and pay shared responsibility requirement Non-calendar year plans transition rules Multi-employer plans Conclusion Background Beginning in 2014, large employers (e.g., employers that employed on average at least 50 full-time employees on business days during the preceding calendar year) may be subject to one of two "shared responsibility" penalties: An employer that fails to offer minimum essential coverage (MEC) to its full-time employees and their dependents may be subject to a nondeductible "play or pay" penalty if any full-time employee enrolls in Exchange coverage and receives a premium tax credit or cost-sharing reduction. The maximum annual play or pay penalty is $2,000 for each full-time employee of the employer, disregarding the first 30 fulltime employees. Employers that offer MEC to their full-time employees and their dependents may be subject to a nondeductible "play and pay penalty of $3,000 for each full-time employee who enrolls in Exchange coverage and receives a premium tax credit or cost-sharing reduction because the employer coverage fails to provide minimum value or is unaffordable. Over the past two years, the IRS has issued four notices addressing the shared responsibility requirements. Using concepts expressed in this past guidance, on January 2, 2013, the IRS published proposed regulations on the employer shared responsibility requirements under ACA. The IRS issued additional guidance in Questions and 1

2 Answers on Employer Shared Responsibility Under the Affordable Care Act. Comments are due by March 18, 2013, and a public hearing on the regulations will be held on April 23, The guidance confirmed that employers can rely on these proposed regulations, and that if the final regulations are more restrictive than the proposed regulations, they will be applied prospectively. Concept of full-time employee Full-time employee status is used both for determining whether an employer meets the definition of a large employer and for purposes of assessing the penalties. Therefore, it is important to understand the concepts used in identifying those employees. The proposed regulations define employee as an individual who is considered a common-law employee under general applicable principles. Common-law employees are generally individuals directed and controlled by an employer and for whom an employer would be required to report and pay employment taxes. (See IRS publication 15-A.) Leased employees, sole proprietors, partners in a partnership and 2% S corporation shareholders are not considered employees. Generally, a full-time employee is an employee who, for a given calendar month, either averages at least 30 hours of service per week or has worked at least 130 hours of service during that month. As discussed below, the method of identifying full-time employees for purposes of determining large employer status differs from the method used for purposes related to the assessment of the shared responsibility penalty. Buck Comment. In addressing the shared responsibility requirements and which employees are subject to these requirements, it is important for employers to determine the employment status of employees e.g., common-law vs. independent contractors; part-time vs. full-time. Hours of service taken into account in determining full-time employee status For this purpose, an hour of service means each hour for which an employee is paid or is entitled to payment. This includes periods during which no services are performed, such as vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty, or a leave of absence. All hours of service performed by an employee for members of a controlled group are taken into account in determining status as a full-time employee. Hours of service worked outside of the US are not counted, regardless of the residency or citizenship of the individual. Methods of counting The proposed regulations require an employer to count actual hours of service for employees paid on an hourly basis. For employees not paid on an hourly basis, an employer may use one of the following three methods to determine hours of service: Actual hours of service A days-worked equivalency, with eight hours of service credited for each day worked A weeks-worked equivalency, with 40 hours of service credited for each week worked 2

3 An employer can use different methods for different classifications of non-hourly employees, as long as the classifications are reasonable and consistently applied. The equivalency methods cannot be used if they would substantially understate employees hours and cause them not to be treated as full-time employees. The employer may change the method for each calendar year. Determining large employer status A large employer is defined as having employed on average at least 50 full-time employees (including full-time equivalent employees, or FTEs) on business days during the preceding calendar year. This average generally is determined by adding the total number of full-time employees and FTEs employed during each month of that calendar year and then dividing by 12. The number of FTEs for a calendar month is determined by adding the number of hours of service for each employee who was not a full-time employee during that month, up to a maximum of 120 hours per employee, and dividing the total number by 120. (For purposes of the shared responsibility penalty, FTEs are used solely to determine large employer status.) Special rules apply for seasonal workers. When an employer is a member of a controlled group, all employees of the controlled group are taken into account when determining whether the 50 full-time employee threshold is reached. An employer that did not exist in the preceding calendar year will be considered a large employer for the current calendar year if it is reasonably expected to employ at least an average of 50 full-time employees on business days during the current calendar year. The proposed regulations provide transition relief for 2014 by allowing an employer to use a period of at least six consecutive calendar months in 2013 to determine its status as a large employer, rather than using the entire 2013 calendar year. This is intended to give an employer sufficient time to determine whether it a large employer subject to the shared responsibility requirements and to implement changes in its health coverage offering, if necessary. Identifying full-time employees for penalty assessment purposes The shared responsibility penalties are calculated on a monthly basis. The potential liability of a large employer for the play or pay penalty is determined by the number of full-time employees it had during a calendar month, while the liability under the play and pay penalty is determined by the number of full-time employees who enrolled in Exchange coverage and received a premium tax credit or cost-sharing reduction during the calendar month. The IRS acknowledged the difficulties employers may have with making monthly determinations of full-time status. Concerned that monthly determinations could result in employees moving in and out of employer coverage, and possibly Exchange coverage, as frequently as monthly, the proposed regulations include an optional look-back measurement method that employers can use as an alternative to making a monthly determination. The approach builds on the method described in earlier guidance. (See our September 10, 2012 For Your Information.) The lookback measurement method varies for different groups of employees. Ongoing employees Ongoing employees are employees who have been employed for at least one standard measurement period. To determine an ongoing employee s full-time status, the employer may look back over a standard measurement period that is not less than three months, or more than 12 months. As an administrative accommodation, the 3

4 proposed regulations permit employers to use the beginning and end of payroll periods as the beginning and end of the measurement period provided the payroll periods are one week, two weeks, or semi-monthly in duration. If the employer determines that an employee averaged at least 30 hours of service over the standard measurement period, the employee must be treated as a full-time employee over a subsequent stability period. The employer has the option of including an administrative period of up to 90 days between the standard measurement period and the stability period. This administrative period would be used by the employer to determine the employee s fulltime status and to offer health coverage to those determined to be full-time. These periods are illustrated below: Look-back method for ongoing employees Administrative Period Up to 90 Days Period used to determine employee eligibility and enroll employees. Standard Measurement Period 3 to 12 Calendar Month Period Period used to determine employee status as full-time employee. Employee considered full-time if averaged at least 30 hours per week during this period. Stability Period Period during which employee status determined in the standard measurement period is fixed regardless of hours worked during the stability period. 4

5 Determined to be a full-time employee. An employee who is determined to be a full-time employee during a standard measurement period must be treated as a full-time employee during the subsequent stability period, regardless of the employee s actual hours of service during the stability period. In this case, the duration of the stability period must be the greater of six months or the length of the standard measurement period. Determined to be a non-full-time employee. An employee who is determined not to be a full-time employee during the standard measurement period may be treated as a non-full-time employee during the subsequent stability period, regardless of the employee s actual hours of service during the stability period. In this case, the duration of the stability period cannot exceed the length of the standard measurement period. The standard measurement period and stability period used by an employer must be uniform for all ongoing employees. However, an employer can use different measurement, stability, and administrative periods for the following categories of employees: Each group of collectively bargained employees covered by a separate bargaining agreement Collectively bargained and non-collectively bargained employees Salaried and hourly employees Employees whose primary places of employment are in different states An employer may change its standard measurement and stability periods each year but cannot make a change for a given year once the standard measurement period has begun. Buck Comment. Employers may want to consider coordinating the ongoing employee administrative and stability periods with the plan year for the health plan. The example below illustrates this approach for a 2015 calendar year plan. The standard measurement period would be the 12-month period from October 15, 2013 through October 14, The administrative period would be coordinated with the annual open enrollment period from October 14, 2014, through December 31, The resulting stability period would be the 2015 calendar year. Look-back method example for ongoing employees Administrative Period October 14, 2014 to December 31, 2014 Standard Measurement Period October 15, 2013 to October 14, 2014 Stability Period January 1, 2015 to December 31,

6 New full-time employees If a new employee is reasonably expected to be employed on average at least 30 hours a week, then coverage must be offered within three months of his or her start date (the date the employee is first required to be credited with an hour of service with the employer). New variable hour or seasonal employees A new employee is considered a variable hour employee if, at the start date, it cannot be determined that the employee is reasonably expected to be employed on average at least 30 hours per week. The proposed regulations do not define seasonal employee, and employers are permitted to use a reasonable good faith interpretation of the term through The preamble to the proposed regulations specifies that educational organizations may not treat employees who work only during the active portions of the academic year as seasonal employees. The method of determining the full-time employee status of new variable hour employees and seasonal employees is similar in concept to that used for ongoing employees, but it is more complicated. An employer may use an initial measurement period of between three and 12 months that begins on any date between the employee s start date and the first day of the calendar month following the start date. An administrative period of up to 90 days is also allowed. But, the combination of the initial measurement period and the administrative period may not extend beyond the last day of the first calendar month beginning on or after the one-year anniversary of the employee s start date. Determined to be a full-time employee. An employer must treat an employee who is determined to be a full-time employee during the initial measurement period as a full-time employee during the subsequent stability period. In this case, the duration of the stability period must be the same length as the stability period for ongoing employees. Determined to be a non-full-time employee. If the employee is determined to be a non-full-time employee during the initial measurement period, then the employee would be treated as a non-full-time employee during the subsequent stability period. In this case, the stability period can be no more than one month longer than the initial measurement period. New employee variable hour employees Administrative Period Up to 90 Days Standard Measurement Period 3 to 12 calendar month period Waiting Period Stability Period 6

7 After a new variable hour or seasonal employee has been employed by an employer for a standard measurement period, the employee is considered to be an ongoing employee and must have his or her hours measured on the same basis as other ongoing employees. Other employee situations The proposed regulations also address other special situations: A new variable hour employee or seasonal employee who has a change in employment status, such that the individual is now reasonably expected to work 30 or more hours of service per week during the initial measurement period, must be treated as a full-time employee on the first day of the fourth month following the change in status. However, a change in employment status of an ongoing employee does not change the employee s status as a full-time or non-full-time employee. (In both of these situations, an employer is always allowed to change the employee s status to full-time.) Special rules are provided for determining the status of new variable hour employees who are rehired after a termination of employment or return to service after other absences. New employees who are expected to be employed on average at 30 hours or more per week for a short term of employment are subject to the same rules described above. Similarly, there are no special rules for employees hired into high-turnover positions. Identifying full-time employees transition relief for 2014 stability periods In order to use the look-back measurement method for determining full-time employees for 2014, employers will need to start their measurement periods in Employers who want to use a 12-month measurement period with a corresponding 12-month stabilization period will face time constraints in doing so. Therefore, solely for the purposes of stability periods beginning in 2014, employers can use a transition measurement period that meets these conditions: Is shorter than 12 months, but no less than six months Begins no later than July 1, 2013 Ends no earlier than 90 days before the first day of the plan year beginning on or after January 1, 2014 Buck Comment. This is significant transition relief of which employers who want to use a 12-month measurement and stability period will likely want to take advantage for However, employers still need to implement procedures quickly for collecting data on employee work hours, if they are not already tracked. For example, an employer with a calendar year plan could use a six-month measurement period starting April 15, 2013, with an administrative period starting October 14, 2013, as shown below: 7

8 2014 transition relief look-back method example Administrative Period October 14, 2013 to December 31, 2013 Measurement Period April 15, 2013 to October 14, 2013 Stability Period January 1, 2014 to December 31, 2014 Separate assessment of shared responsibility penalties within controlled group While determination of large employer status is made on a controlled group basis, the assessment of the shared responsibility penalties will be determined on a member-by-member basis within the controlled group. Therefore, shared responsibility penalties will be computed and assessed separately for each applicable large employer, taking into account that member s offer of coverage and based on that member s number of full-time employees. Buck Comment. The application of the shared responsibility requirements separately to each employer within a controlled group is welcome news for employers in a controlled group. This guidance will enable those affected employers to develop compliance strategies separately for each employer in the controlled group. However, it is important to note that the nondiscrimination requirements under Section 105(h) for self-funded plans still apply, and ACA also includes similar nondiscrimination requirements for insured plans. The nondiscrimination rules under 105(h) appear to limit an employer s ability to offer coverage to some members of a controlled group, while not offering coverage to other members, unless done on a nondiscriminatory basis. The guidance does not permit the application of the shared responsibility requirements independently to separate lines of business within an employer. Within a controlled group, only a single 30 full-time employee reduction in determining the penalty is allowed. It must be prorated among the employers in the controlled group to prevent smaller members of the group from avoiding the penalty altogether. 8

9 Play or pay shared responsibility requirement A large employer that fails to offer minimum essential coverage (MEC) to all full-time employees (and their dependents) may be subject to the "play or pay" $2,000 annual penalty beginning in (The penalty is indexed in future years.) The guidance confirms that employers must also offer dependents the opportunity to enroll in MEC or be subject to this penalty. Dependents include the employee s children under age 26 as defined under Section 152(f)(1), but importantly does not include the employee s spouse. The definition of child includes son, daughter, stepson, stepdaughter, adopted child, child placed for adoption, and foster child. Play or pay penalty Equal to the number of full-time employees employed during the year, multiplied by $2,000 Buck Comment. The definition of child is broader than that used by some employers and may require an expanded plan definition to avoid the penalty. For employers that do not currently offer dependent coverage, or do not cover all the required categories of child, such as foster children, the regulations provide transition relief. If an employer takes steps during 2014 toward offering dependent coverage, the penalty will not apply for failure to offer coverage to dependents for that plan year. The proposed regulations alleviate employers concerns that they might be subject to a penalty based on their entire full-time population if they inadvertently failed to offer MEC to some of their full-time employees. If an employer offers MEC to all but 5% of its full-time employees (or, if greater, five employees) it will be treated as offering coverage to its full-time employees. However, to be considered offered to an employee, it must also be offered to the employee s dependents. Importantly, this relief applies regardless of whether the failure to offer was inadvertent. Buck Comment. The requirement to offer coverage to 95% of the full-time employees, rather than 100%, is welcome relief. And since the failure to offer coverage to up to 5% of the full-time employees does not need to be inadvertent, employers can use this flexibility as part of their compliance strategy. However, it is important to note that if the employer does not offer dependent coverage to more than 5% of its full-time population, it may be subject to the play or pay penalty on its entire full-time population. Play and pay shared responsibility requirement A large employer that offers MEC to its full-time employees and their dependents will potentially be subject to the "play and pay $3,000 penalty in 2014 if at least one full-time employee enrolls in Exchange coverage and qualifies for a premium tax credit or cost-sharing reduction. (The penalty is indexed in future years.) This can occur because: The employer coverage is unaffordable, i.e., the required employee contribution for employee-only coverage exceeds 9.5% of the employee's household income for the taxable year. Play and pay penalty Equal to the number of full-time employees who enroll in Exchange coverage and receive a premium tax credit, multiplied by $3,000 9

10 The employer coverage does not provide minimum value (i.e., the plan s share of the total allowed costs is less than 60% of the costs). The employer offers coverage to at least 95%, but less than 100%, of its full-time employees, and one of the full-time employees not offered coverage enrolls in Exchange coverage. Buck Comment. Only one employer health option needs to satisfy the affordability and minimum value requirements to avoid the penalty. The proposed regulations confirm that affordability for purposes of the employer penalty will be based on the cost of employee-only coverage, and not the cost of family coverage. Still not addressed in guidance is the treatment of wellness incentives and surcharges in determining affordability. The guidance notes that the determination of affordability for purposes of the individual premium tax credit based on the affordability of family coverage will be addressed in future guidance. While ACA does not require that MEC provide minimum value or be affordable, guidance is required on what employer-provided coverage will be considered MEC for purposes of the employer penalties. The proposed regulations state that additional guidance will be provided in the future. In Notice (see our September 20, 2011 For Your Information), the IRS outlined a proposed safe harbor approach for determining affordability based on Form W-2 reporting for purposes of the employer play and pay penalty and asked for other potential safe harbor approaches. Based on comments received, the proposed regulations provide two additional safe harbor approaches that employers can use to determine affordability. W-2 Safe Harbor Affordability is based on the amount reported in Box 1 of the Form W-2 for the employee. If the employee annual contribution for employee-only coverage does not exceed 9.5% of the Form W-2 amount, the employer coverage would be deemed affordable. This determination would be made at the end of the year. Adjusted W-2 amounts and employee contributions are used for employees who did not work the entire year for the employer. Rate of Pay Safe Harbor Affordability is based on the rate of pay as of the beginning of the coverage period (usually the first day of the plan year). For an hourly employee, the monthly wage equals the hourly rate of pay times 130 hours (for a salaried employee, it is the monthly salary). If the employee s monthly contribution for employee-only coverage does not exceed 9.5% of the monthly wages, the employer coverage would be affordable. Note that this safe harbor is not available if the employer reduces wages for the applicable group during the year. Federal Poverty Line Safe Harbor Affordability is based on the federal poverty line (FPL) for a single individual. If the employee contribution for self-only coverage does not exceed 9.5% of the FPL, the employer coverage would be affordable for all employees. For example, the 2012 FPL for a single individual is $11,170. Assuming this FPL applies in 2014, if the annual employee contribution for self-only coverage is not greater than $1, (9.5% of the FPL), the employer coverage would be affordable. The use of these safe harbors is optional. An employer can also choose to use a different safe harbor for any reasonable category of employees, as long as the basis is uniform and consistent for all employees in a category. It is also important to note that the safe harbors are only used for determining affordability for purposes of the employer penalty and do not affect the employee s eligibility for Exchange subsidies, which will still be based on the employee s household income. 10

11 Buck Comment. While the other two safe harbors will likely support higher employee contribution levels, the FPL safe harbor provides a simple approach that employers can use prospectively to determine quickly if a coverage option is affordable for all employees, or to design a coverage option that will be affordable for all employees. Non-calendar year plans transition rules The January 1, 2014 effective date of the shared responsibility requirements presents special issues for noncalendar year (fiscal year) plans for both employers and employees. Employer issues Employers with non-calendar year plans would either need to comply with the shared responsibility requirements at the beginning of the plan year in 2013, or change the terms and conditions of the plan mid-year. Also, to use the look-back measurement method for determining full-time employees, employers with non-calendar year plans would have been required to track employee hours of service before the guidance in these regulations was released. To address these concerns, the preamble outlines transition relief for non-calendar year plans in effect as of December 27, If the employer with a non-calendar year plan offers employees MEC that is affordable and satisfies the minimum value coverage by the first day of the plan year starting in 2014, no employer shared responsibility penalties would apply for the period prior to the plan year that begins in Buck Comment. This transition rule provides important relief for non-calendar year plans and provides these plans with additional time for compliance. However, it is not clear how the transition rule would operate if the employer did not offer MEC that is affordable and satisfies the minimum value requirement for all employees. The proposed regulations indicated that appropriate transition rules are being developed for employees in these plans to account for premium tax credits being available for the 2014 calendar year. Employee issues Most employers allow employees to pay their contributions on a pre-tax basis through a Section 125 cafeteria plan. These pre-tax contribution elections are irrevocable during the plan year, unless the employee experiences a change in status event that affects eligibility for coverage, and the cafeteria plan permits a change in election. With the availability of health plan coverage through an Exchange on January 1, 2014, some employees may want to drop employer coverage and enroll in an Exchange plan. Similarly, to avoid the individual mandate penalty, employees not covered under the employer plan may want to enroll in the employer plan effective January 1, However, these election changes are not allowed under Section 125 regulations. The guidance provides transition relief for non-calendar year cafeteria plans beginning in The plan may permit: An employee who elected to make pre-tax contributions for health coverage to revoke prospectively or change that election once during the plan year that begins in An employee who failed to elect health coverage under an employer plan to enroll prospectively in that coverage during the plan year that begins in

12 An employer who wants to permit these election changes must incorporate these rules into its plan document. The guidance allows a retroactive amendment to the first day of the 2013 plan year, if made by December 31, Multi-employer plans Special transition relief is provided for 2014 for large employers participating in a multi-employer plan. A large employer will not be treated as failing to offer MEC to a full-time employee if: The employer is required to make a contribution to a multi-employer plan for a full-time employee pursuant to a collective bargaining agreement or related participation agreement. Coverage under the multi-employer plan is offered to the full-time employee (and the employee s dependents). The coverage offered to the full-time employee is affordable and provides minimum value. The multi-employer plan must also comply with the 90-day limitation on waiting periods under ACA. Conclusion While additional guidance is still needed in many significant areas of ACA, plan sponsors now have the key guidance required to develop a 2014 compliance strategy to address the employer shared responsibility requirements. Authors Richard Stover, FSA, MAAA Sharon Cohen, JD Mary Harrison, JD Leslye Laderman, JD, LLM Produced by the Knowledge Resource Center of Buck Consultants at Xerox The Knowledge Resource Center is responsible for national multi-practice compliance consulting, analysis and publications, government relations, research, surveys, training, and knowledge management. For more information, please contact your account executive or You are welcome to distribute FYI publications in their entireties. To manage your subscriptions, or to sign up to receive our mailings, visit our Subscription Center. This publication is for information only and does not constitute legal advice; consult with legal, tax and other advisors before applying this information to your specific situation Xerox Corporation and Buck Consultants, LLC. All rights reserved. Xerox and Xerox and Design are trademarks of Xerox Corporation in the United States and/or other countries. Buck Consultants is a registered trademark of Buck Consultants, LLC in the United States and/or other countries. 12

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