The employer shared responsibility provisions, sometimes referred to as pay-or-play, of the Affordable Care Act (ACA) will take effect on January 1, 2015, but in order to be ready to comply, some employers need to take action now.

Determining Whether an Employer Is Subject to Pay-or-Play

The employer shared responsibility provisions apply only to “applicable large employers” (ALEs). An ALE is an employer that has an average of at least 50 full-time employees on business days during the preceding calendar year.  Therefore, for 2015, ALE status will be determined based on the number of full-time employees during 2014.

Calculation of the number of full-time employees is determined on the basis of a controlled group, which means that certain related companies must be included in the calculation, and must take into account full-time equivalents, using a specified formula.  Identification of controlled group members will require action by employers before 2014 so they can keep appropriate records during 2014.  In addition, accurate calculation of the number of full-time equivalents and full-time employees will require careful recordkeeping by employers during 2014 and may require changes to current recordkeeping systems.

Practice Tip: Now is the time to determine controlled group makeup and to make sure that 2014 records will capture all of the necessary information to identify full-time employees.

Measurement and Stability Periods

Employers that are subject to the pay-or-play provisions and fail to offer their full-time employees minimum essential coverage that is affordable and provides minimum value may be subject to penalties if a full-time employee purchases coverage on an Exchange and qualifies for a premium subsidy. Therefore, it is important for those employers that will offer coverage to be able to identify their full-time employees in advance of coverage periods.  A full-time employee for this purpose is an employee who is employed on average at least 30 hours per week.  A monthly equivalent of 130 hours may be used if it is applied on a reasonable and consistent basis. 

Employers with very stable workforces and employees who are always either full-time or part-time may find this an easy task. But employers with variable-hour schedules for some or all employees might find it more difficult to identify which employees are full time. For those employers, the ACA provides the option to use a system of measurement and stability periods to determine, in advance of a coverage period, which employees qualify as full time.  The employee’s status as full time or part time, based on the measurement period, governs the employee’s status for the subsequent stability period, even if the employee’s hours change during the stability period.

The measurement period can be three to 12 months, with a subsequent stability period that generally cannot be shorter than six months or, if longer, the length of the measurement period. An administrative period can be scheduled at the end of the measurement period, to allow the employer to process the measurement period numbers and offer coverage to full-time employees. Make note that there are important limits on the length of an administrative period and important exceptions regarding the permitted length of the stability period, so employers should seek professional advice before designing a measurement and stability period approach. 

Many employers plan to use 12-month measurement and stability periods, to minimize recordkeeping requirements and to match the stability period for ongoing employees with the plan year.  An employer that sponsors a calendar year plan will need its measurement period to be complete before its open enrollment period for the coming plan year.

Here’s an example for an employer with a calendar year plan that has chosen to use a 12-month measurement period, a two-month administrative period, and a 12-month stability period:

For plan year 2015:

Measurement period for plan year 2015: November 1, 2013 through October 30, 2014

Administrative period: November 1, 2014 through December 31, 2014 (with open enrollment during that period)

Stability period: January 1, 2015 through December 31, 2015

For plan year 2016:

Measurement period for plan year 2016: November 1, 2014 through October 31, 2015

Administrative period: November 1, 2015 through December 31, 2015 (with open enrollment during that period)

Stability period: January 1, 2016 through December 31, 2016 

Note that these are only examples; employers are not required to use 12-month measurement and stability periods, or 2-month administrative periods. However, some employers may find that schedule administratively efficient. 

For employers with calendar year plans and a desire to use 12-month measurement and stability periods, the measurement period will need to begin in 2013 for the employer to be ready for employer shared responsibility compliance by January 1, 2015.

A final caution: It is currently unclear whether non-calendar year plans will be required to comply with the employer shared responsibility provisions by January 1, 2015, or will be able to wait until the plan year that begins during 2015.  A transition rule that would have applied to non-calendar year plans in 2014 might no longer be available, now that the compliance date for the employer shared responsibility provisions has been moved to January 1, 2015.

© 2013 Perkins Coie LLP