Adding a one-month orientation period may help an employer avoid complying with the new health benefits. Federal agencies are offering employers a benefits-free 30 day orientation period option in final regulations. There is also clarification on how employers must treat certain categories of new hires, as either FT , PT or Seasonal employees
The Final Regulations
These final regulations provide that the one month period would be determined by adding one calendar month and subtracting one calendar day, measured from an employee’s start date in a position that is otherwise eligible for coverage. For example, if an employee’s start date in an otherwise eligible position is May 3, the last permitted day of the orientation period is June 2. Similarly, if an employee’s start date in an otherwise eligible position is October 1, the last permitted day of the orientation period is October 31.
The new regulations implement part of the “employer shared responsibility mandate” provisions created by the Patient Protection and Affordable Care Act (PPACA). In all categories of new hire the e final regulations provide that one month is the maximum allowed length of an employment-based orientation period. For any period longer than one month that precedes a waiting period, the 90-day period begins after an individual is otherwise eligible to enroll under the terms of a group health plan.
When must an employer offer coverage:
The final regulations continue to provide that if a group health plan conditions eligibility on an employee’s having completed a reasonable and bona fide employment-based orientation period, the eligibility condition is not considered to be designed to avoid compliance with the 90-day waiting period limitation if the orientation period does not exceed one month and the maximum 90-day waiting period begins on the first day after the orientation period.
These final regulations apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2015.
When the Employer Might be Subject to a Penalty:
If at least one full-time employee of the employer buys health insurance in a public Exchange (Marketplace) and qualifies for a subsidy (either a premium tax credit or a cost-sharing reduction), the employer must pay a penalty.
There are two different types of penalties.
)The IRC section 4980H(a) penalty applies if a large employer offers coverage to less than 70% of its full-time employees in 2015 (or to less than 95% after the 2015 plan year). This penalty is $2000 annually or $166.67/month times the total number of “full-time” employees minus the first 80 (minus the first 30 after 2015). The penalty calculation does not include variable hour or seasonal employees who are in their measurement or administrative periods, even if they in fact worked on average at least 30 hours/week or 130/month during those periods. Nor does it include those who are in their stability periods but who did not qualify for coverage based on their hours worked during the associated measurement period.
IRC section 4980H(b) penalty. It applies if a large employer offers coverage to at least 70% of its full-time employees (95% after 2015), but for some full-time employees the coverage is either not “affordable” or does not provide minimum value. This penalty is $3,000 annually or $250/month for each full-time employee who buys health insurance in a public Exchange (Marketplace) and qualifies for a subsidy and for whom the employee cost for self-only coverage under the lowest-cost option available from the employer is more than 9.5% of the employee’s household income (or one of three safe harbors), or for whom the employer coverage offered does not provide at least minimum value. Again, the penalty calculation does not apply if the employee who qualified for a subsidy was a variable hour or seasonal employee who was in his/her measurement or administrative periods, nor does it include those employees who are in their stability periods but who did not qualify for coverage based on their hours worked during the associated measurement period. Additionally, the (b) penalty cannot be more than the (a) penalty would have been had it applied.
Summary and Employer Action Items
The bottom line is this:
If you hire a non-seasonal employee whom you reasonably expect (at date of hire) to work at least 30 hours/week or 130 hours/month, you must track hours each calendar month and offer benefits by the first day of the fourth month if the employee averages at least 130 hours/month for the first three months. This applies even if you hire this employee for a short-term position or a summer internship (unless you take the position, upon advice from your legal counsel, that a summer intern is a “seasonal” employee).
If you hire a non-seasonal employee and you cannot reasonably determine at date of hire if they will work on average at least 30 hours/week (130 hours/month), you can track their hours over their “initial measurement period” and not offer benefits until the associated “stability period,” if the employee averaged at least 130 hours/ month during the measurement period. The stability period might not begin until 13-14 months after the date of hire.
If you hire an employee who meets the new definition of a “seasonal employee,” you can track their hours over their “initial measurement period” and not offer benefits until the associated “stability period” if they averaged at least 130 hours/month during the initial measurement period. You do not have to offer benefits by the first day of the fourth month.
A copy of the final regulations can be obtained by clicking on the link below:
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Obamacare Midsize Employer Mandate Delayed Till 2016.
For small businesses employing 50-99 the Treasury Dept is not requiring compliance of the Employer Mandate until 2016. Companies with 100 workers or more could avoid penalties in 2015 if they showed they were offering coverage to at least 70 percent of their full-time workers, the Treasury said.
The large group employer mandate had been originally delayed until 2015 in July 2013 see- Obamacare Employer Mandate Delayed, More Guidance. Employers with the equivalent of 50 full-time workers or more had to originally offer coverage or pay a penalty starting at $2,000 per worker beginning in 2014.
Employers with 100 or more full-time employers will have to comply with the Internal Revenue Code Section 4980H “play or pay” provision Jan. 1, 2015. Companies with 100 workers or more could avoid penalties in 2015 if they showed they were offering coverage to at least 70 percent of their full-time workers, the Treasury said.
Under the new rules, companies would be allowed during the phasing-in year to offer coverage specifically to a subset of employees, such as those working 35 hours or more a week, the Treasury said.
Treasury also set new rules for how the requirement would apply to workers such as volunteers and seasonal employees, saying that employers wouldn’t be penalized for failing to offer those people coverage, regardless of the number of hours they were working. Teachers, however, wouldn’t be considered part-time workers even if they were away over the summer, and adjunct faculty would have a special arrangement for how their classroom hours should be counted.
The penalty the employer pays would be based on the number of full-time workers that the employer employs. For purposes of calculating the penalty, the employer would not have to include part-time and seasonal workers in the calculations. Under PPACA, only workers who are not offered group health coverage are eligible to apply for exchange coverage.
The coverage must encompass a core set of benefits and be affordable – which the law defines as premiums costing no more than 9.5 percent of an employee’s income – and the employer must pay for the equivalent of 60 percent of the cost of coverage for workers but not their dependents.
As reported in Washington Post: “Administration officials said that organizations with a large number of volunteer employees – such as firefighters and first responders – would not have to provide coverage, along with those hiring seasonal employers who work six months or less in a given year. Teachers will not be considered part-time just because they do not work for three months during the summer, officials added, while the status of adjunct faculty will be calculated on a formula where they would receive credit for 2¼ hours of service per week for each hour they spent teaching or in the classroom.”
Many Employers are asking for flexibilities of defining FT as higher than 30 hours. The law has already had unintended consequences with shift in employment hours especially in industries such as dining, entertainment, services and construction.
Other transitional relief contained in the regulations include:
For employers with between 50 and 99 employees, the employer mandate is delayed until 2016. Note that an employer must provide a certification to take advantage of this relief.
Employees in positions for which the customary annual employment is six months or less generally will be considered seasonal employees and not full-time employees.
When employers are first subject to the employer mandate, they can determine whether they had at least 100 full-time employees in the previous year by referencing a period of six consecutive months, rather than an entire year.
For purposes of determining coverage in 2015 only, employers may use a measurement period (the period used to determine whether a variable-hour employee is a full-time employee) of six months, with respect to a stability period (the period following the measurement period, during which the variable-hour employee must be offered coverage) of up to 12 months.
Employers with non-calendar year plans must comply with the employer mandate at the start of their 2015 plan year, rather than on January 1, 2015.
For more information regarding both Exchanges – Individual Exchanges or SHOP please contact our team at Millennium Medical Solutions Corp (855)667-4621. We work in coordination with Navigators to assist with medicaid, CHIP Child Health Plus, Family Health Plus and Medicare Dual Eligibles. We have Spanish, Russian, and Hebrew speakers available. Quotes can also be viewed on our site.
Obama administration announced that the employer shared responsibility mandate also known as “Pay or Play” aspect of the Patient Protection and Affordable Care Act (PPACA) will be delayed by one year.
This mandate requires businesses with 50 or more workers to provide health insurance coverage to employees. As a result, the administration will start enforcing the mandate in 2015, rather than January 1, 2014, in an effort to give businesses more time to prepare.
There will be additional changes tied to this delay, and the administration has stated that they will provide formal guidance within the next week.
More details will be available for our July 11th WebMeeting. Medical Solutions Corp is working with the various regulatory agencies to understand the specifics surrounding this ruling, and will continue to provide updates through Legislative Alerts and on our blog.
Will I be required to offer health insurance coverage to my employees?
No. However, if you have at least 50 full-time employees, and you don’t offer coverage, you will owe a penalty starting in 2014 if any full time employee is eligible for and purchases subsidized coverage through an exchange. This penalty is called the “free rider” penalty.
We employ about 40 full-time employees working 30 or more hours per week and about 25 part-time or seasonal employees. So we are not subject to the employer mandate penalties, right?
You may be. The health reform law does not require you to provide coverage for employees working on average less than 30 hours per week (“part-time”). However, the hours worked by part time employees are counted to determine whether you have at least 50 full-time employee equivalents and therefore are subject to the employer mandate. This is done by taking the total number of monthly hours worked by part time employees (but not to exceed 120 hours for any one part-time employee) and dividing by 120 to get the number of “full time equivalent” employees. You would then add those “full-time equivalent” employees to your 40 full-time employees.
The hours worked by seasonal employees are also counted to determine whether you have at least 50 full-time employee equivalents and therefore are subject to the employer mandate. For purposes of determining whether you are a large employer, seasonal employees are workers who perform labor or services on a seasonal basis (i.e. exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year) for no more than 120 days during the taxable year and retail workers employed exclusively during holiday seasons. There is an exemption from the employer mandate that says you would not be considered to employ more than 50 full-time employees if:
Your workforce only exceeds 50 full-time employees for 120 days, or fewer, during the calendar year; and
The employees in excess of 50 who were employed during that 120-day (or fewer) period were seasonal workers.
Our workforce numbers go up and down during the year. How do we determine if we had at least 50 full-time employees on business days during the preceding calendar year?
For purposes of determining if you are a large employer, the formula requires the following steps:
1.Determine the total number of full-time employees (including any full-time seasonal workers) for each calendar month in the preceding calendar year;
2.Determine the total number of full-time equivalents (including non-full-time seasonal employees) for each calendar month in the preceding calendar year;
3.Add the number of full-time employees and full-time equivalents described in Steps 1 and 2 above for each month of the calendar year;
4.Add up the 12 monthly numbers;
5.Divide by 12. If the average per month is 50 or more, you are a large employer.
So if we offer coverage to our full-time employees, we will not have to pay a penalty?
Not necessarily. If you have at least 50 full-time employees and you offer coverage to at least 95% of your full-time employees, you are still subject to a penalty starting in 2014 if:
1.A full-time employee’s contribution for employee-only coverage exceeds 9.5% of the employee’s household income (Note: see below regarding a proposed affordability “safe harbor”) or the plan’s value is less than 60%; and
2.The employee’s household income is less than 400% of the federal poverty level; and
3.The employee waives your coverage and purchases coverage on an exchange with premium tax credits.
The penalty will be calculated separately for each month in which the above applies. The amount of the penalty for a given month equals the number of full- time employees who receive a premium tax credit for that month multiplied by 1/12 of $3,000.
We have more than 50 full-time employees so we are subject to the employer mandate penalties. How do we know which of our employees is considered “full-time” requiring us to pay a penalty if they qualify for premium tax credits at an exchange (if the employee has a variable work schedule or is seasonal)?
Through the end of 2014, for purposes of the employer mandate penalties, the guidance permits you to use a “look-back measurement period/stability period” safe harbor to determine which of your employees are considered full-time employees. You may use a standard measurement/stability period for ongoing employees, while using a different initial measurement/stability period for new variable and seasonal employees
How do the full-time employee safe harbors work for new hires?
They are generally based on the employee’s hours worked, or, the amount of hours the employee is reasonably expected to work as of their hire date.
New employee reasonably expected to work full-time (i.e. 30 or more hours per week)– If you reasonably expect an employee to work full-time when you hire them, and coverage is offered to the employee before the end of the employee’s initial 90 days of employment, you will not be subject to the employer mandate payment for that employee, if the coverage is affordable and meets the minimum required value.
New employee reasonably expected to work part-time (i.e. less than 30 hours per week)-– If you reasonably expect an employee to work part-time and the employee’s number of hours do not vary, you will not be subject to the employer mandate penalty for that employee if you don’t offer them coverage.
New variable hour and seasonal employees – If based on the facts and circumstances at the date the employee begins working (the start date), you cannot determine that the employee is reasonably expected to work on average at least 30 hours per week, then that employee is a variable hour employee. Because the term “seasonal employee” is not defined for purposes of the employer responsibility penalty, through 2014, you are permitted to use a reasonable, good faith interpretation of the term “seasonal employee”. The IRS has indicated that any interpretation of the term “seasonal” probably would not be reasonable if it included a working period of more than six months. Once hired, you have the option to determine whether a new variable hour or seasonal employee is a full-time employee using an “initial measurement period” of between three and 12 months (as selected by you).You would measure the hours of service completed by the new employee during the initial measurement period to determine whether the employee worked an average of 30 hours per week or more during this period. If the employee did work at least 30 hours per week during the measurement period, then the employee would be treated as a full-time employee during a subsequent “stability period,” regardless of the employee’s number of hours of service during the stability period, so long as he or she remained an employee. The stability period must be for at least six consecutive calendar months and cannot be shorter than the initial measurement period. If the employee then didn’t work on average at least 30 hours per week during the measurement period, you would not have to treat the employee as a full-time employee during the stability period that followed the measurement period, but the stability period could not be more than one month longer than the initial measurement period.
Example – Facts: For new variable hour employees, you use a 12-month initial measurement period that begins on the start date and apply an administrative period from the end of the initial measurement period through the end of the first calendar month beginning on or after the end of the initial measurement period.
Situation: Dianna is hired on May 10, 2014. Dianna’s initial measurement period runs from May 10, 2014, through May 9, 2015. Dianna works an average of 30 hours per week during this initial measurement period. You offer affordable coverage to Dianna for a stability period that runs from July 1, 2015 through June 30, 2016.
Conclusion: Dianna worked an average of 30 hours per week during her initial measurement period and you had (1) an initial measurement period that does not exceed 12 months; (2) an administrative period totaling not more than 90 days; and (3) a combined initial measurement period and administrative period that does not last beyond the final day of the first calendar month beginning on or after the one-year anniversary of Dianna’s start date. Accordingly, from Dianna’s start date through June 30, 2016, you are not subject to an employer mandate penalty with respect to Dianna because you complied with the standards for the initial measurement period and stability periods for a new variable hour employee. However, you must test Dianna again based on the period from October 15, 2014 through October 14, 2015 (your first standard measurement period that begins after Dianna’s start date) to see if she qualifies to continue coverage beyond the initial stability period.
Employee FT Testing Period Chart
As you can tell, there are many things to consider as you map out your plans for how your business is going to proceed with health care reform. Millennium Medical Solutions Corp hopes to be a valuable resource in the weeks and months ahead as you make these decisions. What about you? Do you have any glaring questions that we could answer for you about health care reform compliance?
For a FREE Affordable Care Act Guide leave your questions in the comments below or click the “Contact Us” button and we’ll do our best to answer your questions.
Please refer to the IRS Notice in the links below for more details and examples:
DISCLAIMER: We share this information with our clients and friends for general informational purposes only. It does not necessarily address all of your specific issues. It should not be construed as, nor is it intended to provide, legal advice. Questions regarding specific issues and application of these rules to your plans should be addressed by your legal counsel.
Tick! tick! tick! As the 2014 Employer Mandate to either pay or play gets closer the nation’s employers move a step closer to having to make a decision: Do I play or pay? This Employer mandate under Patient Protection and Affordable Care Act (PPACA) does not apply to smaller groups under 50 FTE (full time equivalent) employees. Many small groups such as food service industry, retailers, construction etc. in fact have many FTE and while they may work minimal hours can trigger the “pay or play” mandate.
The IRS has released recently guidance published in the form of a Notice of Proposed Rulemaking (NPRM), addresses a number of issues tightly linked to an array of practical considerations related to the employer mandate. These include defining a “large employer,” determining “full-time” status for employees, clarifying the meaning of “dependents,” and determining what constitutes “affordable” coverage.
The guidance also tackles several stickier questions such as how and whether to count foreign or seasonal workers, as well as how to calculate the full-time status of employees who work unusual hours, such as teachers or airline pilots.
Three safe harbors relating to the provision of “affordable” coverage to employees in order to avoid exposure to the mandate penalties are also included in the guidance. Transition relief is offered in recognition of certain employers’ needing time to bring their plans into compliance.
Still, there are several regs that the IRS is awaiting commentary and resolution on due on March 18, 2013.
A Q&A summary of the rule has been released by the IRS and is available by clickinghere.
Some employers assert that the play-or-pay mandate will raise their costs and force them to make workforce cutbacks. As a result, a number are considering eliminating their health care coverage altogether and instead paying the penalty on their full-time employees. While the “pay” option might be worth considering, there are strong reasons why employers should look carefully at all of their options and do their best to calculate the actual outcomes of each.
Other Key Issues Addressed in the Proposed Rules Additional issues addressed in the proposed regulations include:
Determining which employers are subject to the “pay or play” requirements;
Determining who is a full-time employee, including approaches that can be used for employees who work variable hour schedules, seasonal employees, and teachers who have time off between school years;
Determining whether coverage is affordable and provides minimum value; and
Calculating the amount of the penalty due and how the penalty will be assessed.
When conducting a cost-benefit analysis, the key tax issues the employer should consider are:
Employer Tax Penalty for Not Offering “Qualified” Group Health
Not applicable for employers with less than 50 FTEs
$2,000 penalty per full-time employee (minus 30 employee credit)****
Employer Tax Penalty for Offering “Qualified” Health That is Not “Affordable”
Not applicable for employers with less than 50 FTEs
$3000 per employee receiving subsidy
Jungle Corp. has 100 full-time employees and is a leader in its market, using a talent differentiation strategy. Jungle’s family coverage costs $15,000, of which employees pay $3,000. Bob Smith, a highly skilled worker with a strong performance record, earns $50,000 and has family coverage through Jungle’s plan.
On Jan. 1, 2014, Jungle Corp. announces it is dropping its group health plan coverage and will instead pay the $2,000-per-full-time-employee penalty. On Jan. 2, Bob walks into HR and asks about receiving replacement compensation for the $12,000 that the business had been paying toward his family coverage.
Wanting to retain Bob in accordance with its strategy of maintaining market leadership with an experienced workforce, Jungle offers him another $12,000. But clever Bob points out that his share of Social Security and Medicare payroll (FICA) taxes will take a bite out of that $12,000, as will federal and state income taxes, so the HR manager agrees to make good on those amounts as well. Of course, the company will also have to pay its share of FICA taxes on Bob’s additional compensation. As a result, instead of paying $12,000 toward Bob’s family coverage using pre-tax dollars, Jungle Corp. now finds itself paying an additional:
Bob’s salary adjustment: $14,500
Employer’s share of FICA taxes: $1,109
Excise tax (penalty): $2,000 ———————————-
Total: $17,609 (versus $12,000 currently)
Similar per-employee costs will be reflected across the company’s workforce. A move that seemed like a no-brainer, the consequences could make you look silly.
For More Information Due to the complexity of the law in this area, and the absence of finalized guidance, employers are strongly advised to review their benefit plans to prepare for the changes ahead. Additional information regarding the penalty is featured on our Employer Shared Responsibilitypage.
In the coming months, Millennium Medical Solutions Inc will host seminars and will share information you’ll need to know as the countdown continues to October 1st. Please contact us for immediate information on how to implement these initiatives for your group-specific needs at firstname.lastname@example.org Call (855) 667-4621.