Confused about your obligations as an employer under the Affordable Care Act (“ACA”)? The good news is you are not alone. With a sea of rules and regulations
that have undergone several revisions and delays, knowing exactly what you are supposed to be doing as an employer with regards to your employees’
health care can be overwhelming. However, as the benefits and penalties of the ACA are set to take full effect soon, employers must take steps to educate
Employer Responsibilities: Who Must Provide Insurance and When Must They Do So
While the term “employer mandate” has made headlines and is quickly becoming part of the pubic vernacular, few people can explain its precise meaning.
First, the employer mandate is a reference the Employer Shared Responsibility (“ESR”) provisions of the ACA. The ESR provisions state that any employer
with over a certain number of employers must provide insurance coverage to its workers. Generally speaking, larger employers with 50 or more full-time
employees must offer health care coverage to their employees and their dependents. The coverage must be affordable and meet certain minimal criteria.
Employers who fail to comply with this requirement can be assessed hefty fines by the Internal Revenue Service.
For the year 2015, the government has offered “transitional relief” for employers who have between 50 and 99 full-time employees, meaning that for these
employers, coverage does not have to be provided until January 1, 2016 if they meet certain requirements.
Here is where it can get a little confusing: In order to be exempt from the coverage requirements under the ACA, the employer must have had between 50
and 99 full-time employees from February 9 through December 31, 2014. Additionally, the employer must certify that it has not made
any reductions to its workforce in order to meet the exemption requirements and must maintain any health coverage that was already previously being
offered. If no such coverage was being offered, there is no requirement to begin offering coverage for employers who qualify for transitional relief
until January 1, 2016. Of course, if an employer has legitimate business reasons for reducing or modifying her workforce, she is permitted to do so.
Businesses with 100 or more full-time employees are not exempt from providing insurance in 2015, but there is partial relief available. For 2015, if such
a large employer offers coverage to at least 70% of its employees (and their dependents) and no employee receives a premium tax credit to help pay
for coverage through an insurance Marketplace, then the employer will not be subject to any penalty payment. For 2016, the threshold is raised to 95%.
Any employer with 100 or more full-time employees that does not offer insurance to the threshold number of employees and/or which has at least 1 employee
who receives a premium tax credit, it will be subject to a penalty.
So Just How Bad Could the Penalties Be?
The short answer is: steep enough to incentivize employers to offer insurance to their employees. Any employer who is required to provide insurance but
fails to do so, and which has at least one employee that receives a premium tax credit through an insurance Marketplace, will be subject to a penalty
equal to the number of full-time employees it has for the year roughly equivalent to $2,000 per employee. The penalties are calculated on a monthly
basis, meaning they only apply to the months during which no insurance was offered, but some employers could easily see fines in the tens or even hundreds of thousands of dollars each year.
Even employers who are providing insurance can be subject to penalties if they are not providing adequate coverage or if they fail to offer insurance to
enough of their employees. While there are certain reduced penalties for 2015 only, there is currently no relief being offered from
the complicated and stringent requirements of the ACA for 2016 or later. Any employer who is concerned about meeting the ACA’s requirements, even those
who currently provide insurance, would be wise to consult with an attorney. Our lawyers are knowledgeable of employers’ obligations under the ACA and
are dedicated to working closely with our business clients to make sure they are in compliance and avoid paying these steep penalties.
How to Calculate the Number of Full-Time Employees
A full-time employee is defined under the ACA as one who works at least 30 hours a week or 130 hours per month on average. For an employer who employs
only full-time employees, this is a straightforward calculation taking the total average number of full-time employees she had each month over the
previous calendar year. For employers who have part-time employees, the calculation is a little more complicated.
For the purposes of determining an employer’s obligation to provide insurance only, the ACA provides for the inclusion of Full-Time Equivalents (FTEs)
into the calculation. This works by multiplying the total number of hours part-time employees work by the number of part time employees, all divided
by 30. For example, 21 part-time employees who work 20 hours per week would amount to 14 FTEs.
Keep in mind, employers who own or operate more than one business will likely have the employees from each business added together for the purposes of
determining whether or not the employer is required to provide insurance.
Tax Credits for Small Businesses
Under the ACA, businesses with less than 25 full-time employees who are paid, on an average, less than $50,000 per year are eligible for a tax credit if
they pay at least half of the insurance premiums for their employees. The maximum tax credit is 50% of the premiums paid for small businesses, and
35% for small tax-exempt employers. Employees must generally enroll in a qualified health plan offered through a Small Business Health Options Program
(SHOP) Marketplace in order to qualify. The credit is refundable, or it may be applied to future taxes.
Beginning in 2016, businesses with over 50 full-time employees must fulfill reporting requirements with the IRS. Employers are responsible for forms 1095-c
and 1094c, which provide information to the IRS on the employers’ full-time employees and their insurance coverage. When employees, in turn, file their
personal income taxes, the IRS will know whether or not an employee received a premium tax credit. The IRS then uses the employee’s personal income
taxes and the employer forms to determine what, if any, penalty to assess.
So What Should Business Owners Do?
If business owners have over 50 full-time employees, they should plan to provide health coverage to their employees (and their dependents) beginning January
1, 2016. For every month afterwards that coverage is not provided, employers will face stiff penalties for non-compliance. Employers should work closely
with an attorney and a payroll professional to make sure not only that they have in place the necessary coverage, but also are maintaining proper records,
making withholdings from employees’ paychecks, and fulfilling their filing requirements. Smaller business should also consult with an attorney or tax
professional to help determine if they are eligible for certain tax incentives. Finally, an employer who is growing a business or who owns multiple
businesses should seek professional assistance to determine what her future obligations might be under the ACA to avoid paying hefty fines.
Employers of any kind should keep in mind that this article is intended to provide a general overview of some of the most pressing obligations under the
ACA and should not be construed as legal advice. As with any important decision, there are nuances and specific details that may pertain to your situation
and you are best advised to work with a licensed professional to meet your business’s needs. If you would like to consult with one of our attorneys
about your ACA obligations, you can contact us here.