While U.S. Treasury Department health care reform law rules temporarily will shield more employers that do not extend health care coverage to all their employees from a big financial penalty, those employers will continue to be liable for a smaller, still substantial fine.
Under final rules the Treasury department issued last week, employers with 100 or more employees will be exempt from the Patient Protection and Affordable Care Act's $2,000-per-employee penalty in 2015 if they offer coverage to at least 70% of their full-time workers — those who work an average of 30 hours per week.
That's a change from an earlier rule under which employers, starting in 2015, would have been exempt from the $2,000 penalty if they offered coverage to at least 95% of their full-time workers. Last week's Treasury Department rules delayed the 95% coverage requirement until 2016, with the 70% coverage test applying in 2015.
While employers will be less likely next year to trigger the $2,000-per-employee penalty, the Treasury department did not delay another significant reform law penalty employers will face starting in 2015: a $3,000 fine for each full-time employee who is not offered coverage, is eligible because of lower income for a federal premium subsidy and uses that subsidy to buy coverage through a public exchange.
“As tempting as the 70% rule appears, note that it still exposes employers to the $3,000 penalty for each individual who winds up with subsidized exchange coverage,” said Andy Anderson, a partner with Morgan, Lewis & Bockius L.L.P. in Chicago.
Phasing in the 95% coverage mandate will be especially important for employers with employees working between 30 hours and 35 hours a week — whom they consider part-time and now don't extend health coverage to — from the $2,000-per-employee penalty.
That allows affected employers more time to consider various options, such as extending coverage to more employees or dropping part-time employees' hours below the 30-hour penalty trigger, as long as they can pass the 70% coverage test to avoid the $2,000 penalty.
“You'll have more time to make determinations,” said J.D. Piro, a senior vice president with Aon Hewitt in Norwalk, Conn.
Another part of the final rules will reduce the financial effect — also for one year only — of the $2,000 penalty on employers, especially smaller firms, not offering coverage.
In calculating the $2,000 penalty under the law, an employer can reduce its employee count by 30 employees.
Take the example of an employer with 100 full-time employees that does not offer coverage. Under the health care reform law, that $2,000 penalty would be multiplied by 70, resulting in a $140,000 penalty.
But for 2015 only, the employer, for penalty calculation purposes, would reduce its employee count by 80. In the example of the employer not offering coverage to its 100 full-time employees, its penalty would be $40,000 — not the $140,000 that would have been applied without Treasury department relief.
“That is a significant reduction in the penalty for small employers, but that reduction is only for one year,” said Rich Stover, a principal with Buck Consultants L.L.C. in Secaucus, N.J.
Small employers — those with between 50 and 99 employees — will get an even bigger compliance break: The Treasury Department delayed the coverage mandate for them until 2016.
Other parts of the final rules resolve other compliance issues. For example, the rules include a formula to determine whether adjunct faculty members of colleges and universities are full-time employees; that employers are not mandated to extend coverage to employees' step-children and foster children; and that employers are not required to cover seasonal employees who work less than six months of the year.
“Employers now know the rules for which they will have to comply. That is of great assurance,” said Steve Wojcik, vice president of public policy at the National Business Group on Health in Washington.
“Employers can move forward now that they know the rules of the road,” said Amy Bergner, managing director of human resources solutions at Pricewaterhouse-Coopers L.L.P. in Washington.
Still, as sweeping as the rules are, employers are waiting for at least one more set of needed guidance from regulators: how they are to report coverage and enrollment information to the government.
“That will be a huge deal,” said Gretchen Young, senior vice president of health policy with the ERISA Industry Committee in Washington.