Employee Benefits News examines legal developments that impact the employee benefits and executive compensation employers provide, including federal and state legislation, rules from federal...
By Lydia Beyoud
Feb. 10 — Newly issued final rules under the Affordable Care Act provide an additional year for employers with 50 to 99 full-time workers to comply with employer shared-responsibility provisions under tax code Section 4980H before they must pay fees for failing to offer affordable health care.
Beginning Jan. 1, 2015, only employers with 100 or more full-time employees and/or full-time equivalents must comply with the final rules (T.D. 9655) issued Feb. 10. The rules won't apply to businesses with 50 to 99 full-time workers until Jan. 1, 2016, though such establishments will still face related reporting requirements in 2015, the rules said. A crucial condition for receiving the transition relief is that employers must certify that they have not laid off employees to drop under the 100-employee threshold.
In July 2013, the Obama administration delayed several key provisions of the ACA law for one year, pushing back the Jan. 1, 2014, effective date of proposed rules (REG-138006-12) under Section 4980H on mandatory reporting requirements for employers and health insurers, as well as related employer shared-responsibility penalties under sections 6055 and 6056.
The employer shared-responsibility rules—otherwise known as the employer mandate—generally provide that applicable large employers with more than 50 full-time employees and/or full-time equivalents may face penalties if they don't offer full-time employees and their dependents affordable health-care coverage that meets minimum value standards, and if at least one of their employees receives a premium tax credit or reduced-cost health insurance through one of the ACA health insurance marketplaces.
The final rules apply to about 4 percent of employers in the U.S. Employers with between 50 and 99 full-time employees and those with 100 or more employees are about equally divided into 2 percent each of the total number of U.S. employers, Treasury said in a news release issued with the rules.
“The overwhelming majority of these companies with 100 or more employees already offer quality coverage,” Treasury said. The final rules phase in the percentage of full-time workers to which employers need to offer coverage from 70 percent in 2015 to 95 percent in 2016 and beyond. “Employers in this category that do not meet these standards will make an employer responsibility payment for 2015,” Treasury said.
The final rules respond to many of the concerns and comments raised by stakeholders, business groups and members of Congress, a senior Treasury official said during a Feb. 10 conference call prior to the rules' release. The final rules provide that hours of service by “bona fide volunteer” firefighters and emergency responders don't include hours worked.
The administration also provided a bright-line test for adjunct faculty to be included in an employer's full-time-equivalents calculation. Adjunct faculty will receive a 2-1/4-hour credit for each hour of class time. Thus, a faculty member teaching 15 credits will be considered a full-time equivalent employee with more than 30 work hours per week, while those teaching a 12-credit load will generally be considered part-time employees, the Treasury official said. The rule is solely meant to be a safe harbor and not an exclusive rule, the official said. The agency recognizes that a great deal of variation exists within the education community, the official said.
The final rules particularly seek to give relief to the subset of employers just above the 50-full-time-employee threshold who need slightly more time to be able to adjust to providing employee health-care coverage, in many cases for the first time, a second senior Treasury official said during the call. The agency understands that there are legitimate cases in which employers may be downsizing for economic reasons, the second official said.
By delaying compliance for the subset of employers, the Treasury is making use of its broad authority to implement the tax code in a manner to benefit tax administration, the first official said. The fundamental goal of the phased-in transition relief is to achieve harmony with the statute over the long term, the official said.
A chorus of congressional Republicans criticized the new rule. House Speaker John Boehner (Ohio) said the administration's move primarily favored corporations.
“Once again, the president is giving a break to corporations while individuals and families are still stuck under the mandates of his health care law,” Boehner said in a news release. “If the administration doesn't believe employers can manage the burden of the law, how can struggling families be expected to? This continued manipulation by the president breeds confusion and erodes Americans' confidence in him and his health care law. We need fairness for all, with relief from ObamaCare for every American,” he said.
Senate Minority Leader Mitch McConnell (Ky.) echoed Boehner's comments, saying that the White House “seems to have a new exemption from its failed law for a different group every month. It's time to extend that exemption to families and individuals—not just businesses.” McConnell called for repeal of the health-care law, and for it to be replaced “with reforms that lower costs and that Americans support.”
The transition relief for some businesses won't impact the vast majority of small-business owners, John Arensmeyer, chief executive officer of Small Business Majority, said in a Feb. 10 statement.
For employers with fewer than 50 full-time employees, “nothing changes because they were already exempt from the employer responsibility requirements,” he said. “For businesses with more than 50 employees, 96 percent already offer insurance and we believe will continue to for business reasons,” he said.
The additional delay in reporting requirements will allow businesses with 51 to 99 employees more time to adjust and provide additional input to the Treasury on how the proposed requirements will work best, he said. “The most important provisions for small business owners in the law are still moving full steam ahead,” including health insurance marketplaces and cost containment provisions, Arensmeyer said.
“I think that both large and small employers should be very pleased with the transition relief that Treasury has provided in these final regulations,” Helen H. Morrison, a principal in the national tax department at EY in Washington and a former deputy benefits tax counsel in Treasury's Office of Tax Policy, told Bloomberg BNA Feb. 10.
“It will provide employers with the flexibility to begin implementation and phase in to 2016 when the rules will go into effect in full,” Morrison said. The transition rule that reduces for 2015 the percentage of full-time employees to which employers must provide coverage “is much more favorable,” she said. The final rules appear to carry forward other helpful transition rules from the proposed regulations, she said.
The final rules also help clarify the definition of seasonal employees with respect to determining full-time equivalency for purposes of the look-back measurement period, she said.
The department is aware that final employer and insurer reporting rules under tax code sections 6055 and 6056 are also greatly needed to fully implement the final employer shared responsibility rules, the first senior Treasury official said during the conference call.
The reporting rules should be out within a few weeks, and should significantly streamline and simplify reporting methods so that employers will have a relatively straightforward way to comply with the requirements, the official said.
That guidance will be important to have so that employers can begin the process of configuring their systems to comply with the law, Morrison said.
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