The Affordable Care Act’s (ACA) Employer Shared Responsibility Determination and the Potential Employer Penalty
Released: 2016-04-22T00:00:00

T he Patient Protection and Affordable Care Act (ACA; P.L. 111-148 , as amended) expanded insurance coverage in the United States through its "shared responsibility" provisions: Employers either provide health coverage or face potential employer tax penalties; likewise, individuals purchase health coverage or face potential individual tax penalties. The ACA does not require employers to provide health coverage, but it does impose employer penalties in the form of a monthly tax on employers that do not provide adequate and affordable health coverage to certain employees. This is known as the employer "shared responsibility" provision.

Since 2015, employers with at least 50 full-time equivalent (FTE) employees are subject to the employer shared responsibility provisions under Section 4908H of the Internal Revenue Code (IRC) as amended by the ACA. However, in 2015, employers with between 50 and 100 FTE employees were eligible for transition relief if certain criteria were met. (For details, see " Implementation and Transition Relief " below.)

This report describes the potential employer penalties as well as regulations to implement the ACA employer provisions. The regulations address insurance coverage requirements, methodologies for determining whether a worker is considered full time, provisions relating to seasonal workers and corporate franchises, and other reporting requirements.

For an economic analysis of the employer penalty and policy options to modify the penalty, see CRS Report R43181, The Affordable Care Act and Small Business: Economic Issues , by [author name scrubbed] and [author name scrubbed].

Employer Shared Responsibility Determinations

Applies to All Employers

The ACA employer shared responsibility provisions apply to all common law employers, including government entities (such as federal, state, local, or Indian tribal government entities) and nonprofit organizations that are exempt from federal income taxes.

Potential Employer Penalty Requirements

The potential employer penalty does not explicitly require that employers offer their employees acceptable health coverage. However, it does impose penalties on certain firms with at least 50 FTE employees if one or more of their full-time employees obtains a premium tax credit through the newly established health insurance exchanges. An individual may be eligible for a premium tax credit if his or her income is between certain thresholds and the individual's employer does not offer health coverage or offers insurance that is "not affordable" or does not provide "minimum value," as defined by the ACA. As shown in Figure 1 , determining the potential exposure to the employer penalty is a multi-stage process.

First, the firm must be a large employer with at least 50 FTEs to be potentially subject to the penalty. Second, only workers who are considered to be full-time (generally, averaging 30 hours or more per week) may trigger the penalty. Third, the actual calculation of the penalty will depend upon whether the employer currently provides health coverage to its full-time employees, if the coverage is considered adequate and affordable as defined by the ACA, and the number of full-time employees.

Large Employers, Shared Responsibility Provisions, and Potential Penalty Determinations

Only large employers may be subject to penalties regarding employer-sponsored health insurance. The ACA defines a large employer as one who employed an average of at least 50 FTEs on business days during the preceding calendar year.

Large Employer Status: Determined by Full-Time Equivalent Calculation

As depicted in Figure 1 , to determine whether an employer is a large employer, the hours worked by both full-time and part-time employees must be calculated. Full-time is defined as having worked on average at least 30 hours per week. Hours worked by part-time employees (i.e., those working less than 30 hours per week) are converted into FTEs and are included in the calculation. In general, hours worked by seasonal employees are also included in this calculation. Overall hours worked by part-time employees during a month are added up, and the total is divided by 120 and added to the number of full-time employees to get the number of FTE workers. This calculation determines only whether an employer is considered large for purposes of potentially being subject to a penalty. The actual penalty is applicable solely to health coverage status of full-time workers and is discussed in the " How to Determine an Employee's Full-Time Status " section of this report.

The process to determine the underlying employer may be a complicated determination. Owners or part-owners in multiple businesses must follow Internal Revenue Service (IRS) aggregation rules. Firms that use independent contractors must follow IRS rules for determining whether the contractor is an employee. Firms that contract with a temporary staffing agency must determine which entity is the employer (i.e., the firm or the staffing agency) for ACA purposes. Finally, businesses that hire seasonal workers have special rules on how to count hours worked by seasonal employees.

Employers Such as Franchise Owners or Multiple Business Owners

The ACA large-employer calculation requires that an employer of multiple entities (such as a franchise owner with several restaurants) must follow the IRS aggregation rules governing controlled groups . Specifically, if one individual or entity owns (or has a substantial ownership interest in) several franchises, all those franchises are essentially considered one entity. In this case, for purposes of the 50-FTE rule, the employees in each of the franchises must be added together to determine the number of FTEs.

Independent Contractors

The ACA definition of an employer is based on the common law standard in which a worker is considered to be an employee if the worker is subject to the will and control of the employer not only as to what shall be done but how it shall be done. The potential employer penalty applies to all common law employers, including government entities (such as federal, state, local, or Indian tribal government entities) and nonprofit organizations that are exempt from federal income taxes.

An independent contractor is a worker who controls what will be done and how it will be done and for whom the contract dictates the desired result of the work. The IRS provides further guidance on the distinction between employees and independent contractors. An independent contractor would not be considered an employee for the purposes of the employer penalty calculation.

Temporary Staffing Firm Workers

In general, the employer of a temporary agency worker is the employing agency rather than the firm that has contracted with the agency to provide workers on a temporary basis.

Calculating Large Employer Status When the Firm Employs Workers Covered by TRICARE or Veterans Assistance

Hours worked by individuals receiving care under the TRICARE program, or individuals enrolled and receiving coverage through certain Department of Veterans Affairs health care programs, are excluded from calculations to determine if an employer is large.

Calculating Large Employer Status When the Firm Employs Seasonal Workers

When determining whether a firm meets the ACA definition of an applicable large employer, the hours worked by seasonal employees may be treated differently if (1) an employer would be considered a large employer for fewer than 120 days, and (2) for those days the hours worked by seasonal employees are what push the employer's FTE calculation above 50 FTEs.

If these two conditions are met, the employer may exclude the hours worked by seasonal employees and thus would not be considered a large employer. Otherwise, all hours by all employees (including seasonal workers) are applied to determine large-employer status.

Potential Penalties on Large Employers

Regardless of whether a large employer offers coverage, it will be potentially liable for a shared responsibility tax (penalty) only if at least one of its full-time employees obtains coverage through an exchange and receives a premium tax credit. For purposes of determining the penalty, a full-time employee includes only those individuals working on average 30 hours or more per week. As shown in Figure 1 , part-time workers are not included in the penalty calculations (even though they are included in the determination of a "large employer"). An employer will not pay a penalty for any part-time worker even if that part-time employee receives a premium credit. As discussed under implementation issues below, employers are not likely to pay a penalty based upon seasonal workers receiving a premium credit if they work less than 30 hours on average over a pre-specified time period (up to 12 months).

Large Employers Determined to Not Offer Health Coverage

A large employer that does not offer health coverage will be subject to the ACA employer penalty only if any of its full-time employees obtain coverage through an exchange and receive a premium tax credit.

In 2016, the monthly penalty assessed to an employer that does not offer coverage is equal to the number of its full-time employees minus 30 multiplied by one-twelfth of $2,160 for any applicable month. That penalty is indexed by a premium adjustment percentage for each calendar year.

Large Employers Determined to Offer Health Coverage

Large employers that offer health coverage may face a penalty if the employer's coverage fails to meet one of two criteria:

1. Affordability—The individual's required contribution toward the plan premium for self-only coverage cannot exceed 9.66% of his/her household income in 2016. 2. Adequacy—The health plan must pay for at least 60%, on average, of covered health care expenses to be considered adequate.

Employers that offer unaffordable or inadequate health insurance coverage do not meet the employer requirements if at least one full-time employee declines the coverage and obtains a premium credit in an exchange plan.

The penalty amounts are indexed by a premium adjustment percentage for each subsequent calendar year. In 2016, the penalty payment amount is the lesser of

the number of full-time employees who receive a premium credit multiplied by one-twelfth of $3,240 for any applicable month, or the total number of the firm's full-time employees minus 30, multiplied by one-twelfth of $2,160 for any applicable month.

How to Determine an Employee's Full-Time Status

As discussed above, the total ACA employer penalty is based on the number of full-time employees. The ACA specified that working 30 hours or more per week is considered full-time. However, the statute did not specify what time period (i.e., monthly or annually) employers would use to determine if a worker is full-time. The ACA directed the Department of Health and Human Services and the Department of Labor to provide regulatory guidance to employers for determining their employees' full-time status.

As a result, 130 hours of service in a calendar month is treated as the monthly equivalent of at least 30 hours of service per week, and this 130 hours of service monthly equivalency applies for both the look-back measurement method and the monthly measurement method for determining full-time employee status.

IRS Notice 2014-9 describes methods that an employer may use to determine which employees are considered full-time employees for purposes of administering the ACA employer penalty provision. There are three distinct periods in the determination process:

1. The measurement period is the number of months when an employer calculates the total number of hours worked by the employee to determine whether the employee must be considered full-time under the ACA. 2. The administrative period is the amount of time an employer may take to identify and enroll full-time employees into the health care coverage. 3. The stability period is the amount of time an employer is required to treat all employees who were determined to be full-time during the measurement period as full-time under the ACA. An employer may be subject to an ACA penalty during this stability period if those designated as full-time employees (from the hours worked during the measurement period) qualify for a health coverage subsidy during this period (regardless of hours worked during the stability period).

The IRS notice then allows the employer to choose different methods of determining the measurement, administrative, and stability periods for three groups of workers:

ongoing employees; new employees who are reasonably expected to work full-time; and new employees who work variable hours or seasonal jobs.

Ongoing Employees

An ongoing employee is an employee who has been employed for at least one complete standard measurement period. This is a defined period of between 3 and 12 consecutive months. (See the transition relief subsection " Measurement Period " for an alternative measurement for 2015 only.)

An employer determines each ongoing employee's status by looking back at the standard measurement period. The employer has the flexibility to determine the months when the standard measurement period starts and ends, provided that the determination is made on a uniform and consistent basis for all employees in the same category. During a measurement period, the employer determines if the employee worked on average at least 30 hours per week per month.

If the employer determines that an employee averaged at least 30 hours per week, then the employer treats the employee as a full-time employee during a subsequent stability period regardless of the number of hours the employee works during the stability period—so long as he or she remains an employee. An employer can be subject to a penalty only during the stability period.

Employers may create different measurement and stability periods for the following categories of ongoing employees:

collectively bargained and non-collectively bargained employees, salaried and hourly employees, employees of different entities (i.e., controlled groups), and employees located in different states.

Employers may opt to use an administrative period (between the measurement and stability periods) to determine which ongoing employees are eligible for coverage and to notify and enroll employees in health care plans.

New Employees Reasonably Expected to Work Full-Time

If an employee is reasonably expected at his or her start date to work full-time, an employer must either offer affordable health coverage within three calendar months of the worker's start date or face a potential shared responsibility penalty.

Full-Time Status Determination of Variable Hour Work and Seasonal Workers

Variable Hour Employees

The regulations provide that a new employee is a variable hour employee if it cannot be determined that the employee is reasonably expected to be employed on average at least 30 hours per week. In some cases, variable hour employees might not work the necessary 30 hours on average over a specified time period (up to 12 months) to be considered full-time.

A new employee who is expected to be employed initially at least 30 hours per week may be a variable hour employee as long as the period of employment at more than 30 hours per week is reasonably expected to be of limited duration.

Seasonal Workers

In general, under the ACA an employee may be a seasonal employee if the employee is hired into a position for which the customary annual employment is six months or less and the period of employment begins each calendar year in approximately the same part of the year (e.g., summer or winter). The ACA treats seasonal employees' work hours differently when determining large employer status (where all hours done by seasonal workers are included in the calculation except as described in the " Calculating Large Employer Status When the Firm Employs Seasonal Workers " section) and for calculating an employee's full-time worker status.

Determining Full-Time Worker Status for Seasonal Workers

When determining the number of full-time employees for purposes of applying the employer penalty, the final regulations allow employers to employ a look-back measurement period of up to 12 months for determining if seasonal employees are full-time employees. The ability of employers to use a 12-month measurement period for seasonal employees (who by definition work usually fewer than six months per year at the job) effectively allows most firms to exclude seasonal workers as full-time workers even if their hours were used in calculating the employer's size.

Full-Time Status Determination of Adjunct Faculty, Employees with Layover Hours or On-Call Hours, Employees with Difficult to Identify or Track Hours

The Treasury Department and the IRS continue to consider additional rules for determining hours of service for purposes of Section 4980H regarding certain categories of employees. The IRS guidance requires employers to determine full-time status for adjunct faculty, employees with layover hours (including the airline industry), and employees with on-call hours to use a "reasonable method" of crediting hours of service that is consistent with Section 4980H of the IRC.

The guidance states that it would not be reasonable for an employer to not credit an employee with an hour of service for any on-call hour if

the employer pays the employee for that hour, the employee is required to remain on-call on the employer's premises, or the employee's activities while remaining on-call are subject to substantial restrictions that prevent the employee from using the time effectively for the employee's own purposes.

In addition, employers of other employees whose hours of service are particularly challenging to identify or track or for whom the final regulations' general rules for determining hours of service present special difficulties (e.g., commissioned sales) are also required to use a "reasonable method" of crediting hours.

Exclusions from Definition of Hour of Service: Volunteers, Student Workers in Certain Types of Employment, and Members of Religious Orders

Volunteers (Including Some Volunteer Firefighters)

The hours of service performed in certain capacities do not count as an hour of service for determining either employer size or full-time status. In particular, the hours worked by unpaid volunteers and certain nominally compensated volunteers (including some volunteer firefighters) are excluded from ACA calculations.

Student Workers

The hours worked by students in positions subsidized through the federal work study program (or equivalent) are excluded from ACA calculations. However, the final regulations do not expand this exclusion into a general exception for all student employees. All hours of service for which a student employee of an educational organization (or of an outside employer) is paid or entitled to payment in a capacity other than through the federal work study program (or equivalent) are required to be counted as hours of service for Section 4980H purposes.

Religious Orders

The Treasury Department and the IRS continue to consider additional rules for determining hours of service for purposes of Section 4980H of the IRC regarding hours worked by members of religious orders. Until further guidance is issued, a religious order is permitted, for purposes of determining whether an employee is a full-time employee under Section 4980H, to not count as an hour of service any work performed by an individual who is subject to a vow of poverty as a member of that order when the work is in the performance of tasks usually required (and to the extent usually required) of an active member of the order.

Health Insurance Coverage Requirements for Employer Plans

To fulfill the shared responsibility requirements, employers must provide health insurance coverage that is both affordable and adequate to full-time employees and their dependents.

Dependent Coverage: Children Under 26 but Not Spouse

For purposes of the provision, the term dependent means a child under 26 years old of an employee. Absent knowledge to the contrary, applicable large employers may rely on an employee's representation about that employee's children and their ages. The term dependent does not include the spouse of an employee.

Affordable Coverage

Employer coverage is deemed affordable if the employee's portion of the self-only premium for the employer's lowest-cost health coverage plan does not exceed 9.66% of the employee's W-2 wages .

Affordability and Family Health Insurance Coverage: The "Family Glitch"

Affordability is determined at an individual level. The definition of affordable—for both an individual employee and a family—is based only on the cost of individual-only coverage and does not take into consideration the often significantly higher cost of a family plan.

Adequate Coverage (Minimum Value)

Under the ACA, a plan is considered to provide adequate coverage (also called minimum value) if the plan's actuarial value (i.e., share of the total allowed costs that the plan is expected to cover) is at least 60%.

The actuarial value calculation for determining minimum value includes the employer contributions to health savings accounts and health reimbursement accounts that are part of a high deductible health plan.

Implementation and Transition Relief Through 2015

The ACA, as written, required that the employer shared responsibilities begin to be implemented in 2014. However, the IRS delayed the employer mandate implementation until 2015. There were up to three forms of transition relief available for employers in 2015. First, large employer status determination was allowed to have a measurement period as short as six consecutive months. Second, there was an additional year to expand the 2015 health plans to include dependent coverage. Finally, for employers with fewer than 100 FTEs, the ACA employer penalty did not apply in 2015. (For details see the following section " Employers with Fewer Than 100 FTEs .")

In addition, there were similar delays in the employer reporting requirements for 2014. Beginning in 2015, a large employer must file a return with the IRS reporting certain information about the health care coverage the employer offered to each full-time employee (or alternatively, that the employer did not offer health care coverage to that employee). Additionally, large employers must furnish a similar statement to each full-time employee by January 31 of the following calendar year. (See Appendix A for details.)

Measurement Period

In 2015, rather than being required to use the full 12 months of 2014 to measure whether an employer has 50 FTEs, an employer was allowed to measure any consecutive six-month period during 2014.

Dependent Coverage

An employer that took steps toward offering dependent health coverage in 2015 was not subject to the ACA employer penalty solely on account of a failure to offer coverage to dependents for that plan year. This transition relief applied to health plans offered by an employer if dependent coverage is not offered, is not adequate, or is offered for some but not all dependents.

Employers could qualify for the dependent coverage transition relief only for those dependents who were without an offer of coverage from the employer in both the 2013 and 2014 plan years and if the employer had taken steps in either the 2014 or 2015 plan year (or both) to extend coverage to dependents not offered coverage in 2013 or 2014.

Employers with Fewer Than 100 FTEs

For employers with fewer than 100 FTEs in 2014, the ACA employer penalty did not apply for any calendar month during the 2015 plan year, including the months during the plan year that fell in 2015. This transition relief applied only if the workforce size was fewer than 100 FTEs, the employer had not reduced its workforce size to qualify for relief, and the employer maintained health care coverage in 2015 that had been offered in 2014.

Limited Workforce Size

The employer must have employed on average at least 50 FTEs but fewer than 100 FTEs on business days during 2014 in order to qualify for transition relief. The number of full-time employees (including FTEs) was determined in accordance with the otherwise applicable rules in the final regulations for determining status as an applicable large employer.

Maintenance of Workforce and Aggregate Hours of Service

The employer could not reduce the size of its workforce or the overall hours of service of its employees in order to qualify for the transition relief. However, an employer that reduced workforce size or overall hours of service for bona fide business reasons was still eligible for the relief.

Maintenance of Previously Offered Health Coverage

The employer could not eliminate or materially reduce the health coverage, if any, it offered as of February 9, 2014, in order to qualify for transition relief. The maintenance requirement must have been met for the period beginning on February 9, 2014, and ending on December 31, 2015. (Employers with non-calendar-year plans must have met the maintenance requirement through the last day of the 2015 plan year.)

An employer was not treated as eliminating or materially reducing health coverage if any of these conditions were met:

It continued to offer each employee who was eligible for coverage an employer contribution toward the cost of employee-only coverage that either (1) was at least 95% of the dollar amount of the contribution toward such coverage that the employer was offering on February 9, 2014, or (2) was at least the same percentage of the cost of coverage that the employer was offering to contribute toward coverage on February 9, 2014; In the event of a change in benefits under the employee-only coverage offered, that coverage provided minimum value after the change; and It did not alter the terms of its group health plans to narrow or reduce the class or classes of employees (or the employees' dependents) to whom coverage under those plans was offered on February 9, 2014.

Appendix A. Employer Reporting and Other Requirements

Under Section 6056 of the IRC, a large employer must file a return with the IRS reporting certain information about the health care coverage the employer offered to each full-time employee (or alternatively, that the employer did not offer health care coverage to that employee). In addition, Section 6051(a)(14) of the IRC requires that large employers must furnish a similar statement to each full-time employee by January 31 of the following calendar year.

In summary, large employers must provide the following information to their full-time employees:

the existence of an exchange, including services and contact information; the employee's potential eligibility for premium credits and cost-sharing subsidies if the employer plan's share of covered health care expenses is less than 60%; and the employee's potential loss of any employer contribution if the employee purchases a plan through an exchange.

Large employers must provide the following to the IRS:

a return including the name, address, and employer identification number; a certification as to whether the employer offers its full-time employees (and dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan; the length of any waiting period; months coverage was available; monthly premiums for the lowest-cost option; the employer plan's share of covered health care expenses; the number of full-time employees; the name, address, and tax identification number of each full-time employee; and information about the plan for which the employer pays the largest portion of the costs (and the amount for each enrollment category).

In addition, the employer must also provide each full-time employee the following:

a written statement showing contact information for the person required to make the above IRS return and the specific information included in the W-2 return for that individual.

On November 2, 2015, P.L. 114-74 , the Bipartisan Budget Act of 2015, repealed the automatic enrollment requirement in Section 18A of the Fair Labor Standards Act (FLSA). This provision had been added by Section 1511 of the ACA. The automatic enrollment provision would have required an employer (covered under the FLSA) with more than 200 full-time employees to automatically enroll new full-time employees in one of the employer's health benefits plans and continue the enrollment of current employees. Additionally, employers would have had to provide adequate notice and the opportunity for employees to opt out of any automatically enrolled coverage.

Appendix B. Related Legislative Activity in the 114 th Congress

In the 114 th Congress, Section 4007 of P.L. 114-41 (the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, signed into law on July 31, 2015) created a new requirement that hours worked by individuals receiving care under the TRICARE program or individuals enrolled and receiving coverage through certain Department of Veterans Affairs' health care programs are excluded from calculations to determine if an employer is large.

In the 114 th Congress, many bills have been introduced related to the employer mandate (including H.R. 3236 , which was signed into law as P.L. 114-41 , and H.R. 1314 , which was signed into law as P.L. 114-74 ). See Table B-1 for details.