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The Affordable Care Act’s (ACA) Employer Shared Responsibility Determination and the Potential Employer Penalty

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The Affordable Care Act's (ACA) Employer Shared Responsibility Determination and the Potential ACA Employer Penalty Julie M. Whittaker Specialist in Income Security September 1, 2015 Congressional Research Service 7-5700 www.crs.gov R43981 ACA: Employer Shared Responsibility Determinations and Potential Penalties Summary The Affordable Care Act (ACA) creates shared responsibilities for both employers and individuals with regard to health insurance coverage. Additionally, the ACA expands federal private health insurance market requirements and requires the creation of health insurance exchanges to provide individuals and small employers with access to insurance. This report examines the new employer responsibilities. To ensure that employers continue to provide some degree of health coverage, the ACA includes a “shared responsibility” provision. This provision does not require that an employer offer employees health insurance; however, the ACA imposes penalties on a “large” employer if at least one of its full-time employees obtains a premium credit through the newly established exchange. Beginning in 2015, employers employing at least 50 full-time equivalent (FTE) employees are subject to the shared responsibility provisions. However, in 2015 there is transition relief for employers employing between 50 and 100 FTE employees if certain criteria are met. The ACA sets out a multi-stage process for determining, first, which firms may be subject to the penalty (i.e., definition of large), and second, which workers within a firm would trigger the penalty. The complex calculations and multiple definitions of full-time work have led to confusion among policymakers and employers. This report discusses these definitions and the application to the employer penalty in greater detail. 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. If multiple businesses are owned by one individual or entity, employees in each of the franchises must be aggregated to determine the number of both full-time equivalent and full-time employees. The actual amount of the penalty varies depending on whether an employer currently offers insurance coverage and the number of full-time employees. In order for employers who do provide health insurance coverage to avoid paying a penalty, the coverage must be both affordable and adequate. Coverage is considered affordable if the employee’s required contribution to the plan does not exceed 9.5% of the employee’s household income for the taxable year. However, the Internal Revenue Service (IRS) allows employers to use the employee’s W-2 income in lieu of household income for this calculation (since most employers do not readily have information on an employee’s household income). A health plan is considered to provide adequate coverage if the plan’s actuarial value (i.e., the share of the total allowed costs that the plan is expected to cover) is at least 60%. The total penalty for any applicable large employer is based on its number of full-time employees. The ACA specified that working 30 hours or more per week is considered full-time. Employers have some flexibility to designate certain measurement or look-back periods (up to 12 months) during which they will calculate whether a worker is full-time or not. Once an employee is determined to be full-time, there is an administrative period to enroll employees in a health plan, if necessary. If an employer penalty is levied under the ACA requirements, it applies only for the time period following the administrative period, which is called the stability period. An employer is not penalized if an employee enters the exchange and receives a premium credit during the measurement period. Appendix B includes a table of relevant legislation introduced in the 114th Congress. Congressional Research Service ACA: Employer Shared Responsibility Determinations and Potential Penalties Contents Employer Shared Responsibility Determinations............................................................................ 1 Applies to All Employers .......................................................................................................... 1 Potential Employer Penalty Requirements ................................................................................ 1 Large Employers, Shared Responsibility Provisions, and Potential Penalty Determinations ....................................................................................................................... 2 Large Employer Status: Determined by Full-Time Equivalent Calculation ....................... 3 Employers Such as Franchise Owners or Multiple Business Owners ................................ 3 Independent Contractors ..................................................................................................... 4 Temporary Staffing Firm Workers ...................................................................................... 4 Calculating Large Employer Status When the Firm Employs Workers Covered by TRICARE or Veterans Assistance ................................................................................... 4 Calculating Large Employer Status When the Firm Employs Seasonal Workers ............... 4 Potential Penalties on Large Employers .......................................................................................... 5 Large Employers Determined to Not Offer Health Coverage ................................................... 5 Large Employers Determined to Offer Health Coverage .......................................................... 6 How to Determine an Employee’s Full-Time Status................................................................. 7 Ongoing Employees .................................................................................................................. 9 New Employees Reasonably Expected to Work Full-Time ...................................................... 9 Full-Time Status Determination of Variable Hour Work and Seasonal Workers .................... 10 Variable Hour Employees ................................................................................................. 10 Seasonal Workers .............................................................................................................. 10 Full-Time Status Determination of Adjunct Faculty, Employees with Layover Hours or On-Call Hours, Employees with Difficult to Identify or Track Hours ............................ 10 Exclusions from Definition of Hour of Service: Volunteers, Student Workers in Certain Types of Employment, and Members of Religious Orders ...................................... 11 Volunteers (Including Some Volunteer Firefighters) ......................................................... 11 Student Workers ................................................................................................................. 11 Religious Orders ................................................................................................................ 11 Health Insurance Coverage Requirements for Employer Plans .................................................... 12 Dependent Coverage: Children Under 26 but Not Spouse...................................................... 12 Affordable Coverage ............................................................................................................... 12 Affordability and Family Health Insurance Coverage: The “Family Glitch” ................... 12 Adequate Coverage (Minimum Value).................................................................................... 13 Implementation and Transition Relief ........................................................................................... 13 Measurement Period................................................................................................................ 13 Dependent Coverage ............................................................................................................... 14 Employers with Fewer Than 100 FTEs................................................................................... 14 Limited Workforce Size .................................................................................................... 14 Congressional Research Service ACA: Employer Shared Responsibility Determinations and Potential Penalties Maintenance of Workforce and Aggregate Hours of Service ........................................... 14 Maintenance of Previously Offered Health Coverage ...................................................... 14 Figures Figure 1. Determining If an Employer Is Subject to Shared Responsibility (Penalty) Provisions ................................................................................. 2 Tables Table 1. Time Frame for Determining Full-Time Status ................................................................. 8 Table B-1. Related Legislative Activity in the 114th Congress ...................................................... 18 Appendixes Appendix A. Employer Reporting and Other Requirements ......................................................... 16 Appendix B. Related Legislative Activity in the 114th Congress .................................................. 18 Contacts Author Contact Information .......................................................................................................... 22 Congressional Research Service ACA: Employer Shared Responsibility Determinations and Potential Penalties he3, 2015 (R43981) Jump to Main Text of Report The Patient Protection and Affordable Care Act (ACA; P.L. 111-148, as amended) expands 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.1 1 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. 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. T 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]. , by Sean Lowry and Jane G. Gravelle. Beginning in 2015, employers employing 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 there is transition relief for employers employing between 50 and 100 FTE employees if certain criteria are met. (Additional transition relief is available in certain circumstances as explained in "Implementation and Transition Relief" section of this report.) 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 obtain a premium tax credit through the newly established health insurance exchanges.22 An individual may be eligible for a premium tax credit if his or her income is below certain thresholds and the individual's employer does not offer health coverage or offers insurance that is "not affordable" or does not provide “minimum "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. 1 For information on the individual shared responsibility provisions, see CRS Report R41331, Individual Mandate Under ACA, by Annie L. Mach. 2 For more information about exchanges under the ACA, see CRS Report R44065, Overview of Health Insurance Exchanges, coordinated by Namrata K. Uberoi. For more information on premium credits in particular, see CRS Report R41137, Health Insurance Premium Credits in the Patient Protection and Affordable Care Act (ACA) in 2014, by Bernadette Fernandez and CRS Report R43833, Premium Tax Credits and Federal Health Insurance Exchanges: Questions and Answers, by Jennifer A. Staman et al. Congressional Research Service 1 ACA: Employer Shared Responsibility Determinations and Potential Penalties    employer penalty is a multi-stage process. First, the firm must be a large employer with at least 50 FTEs (100 FTEs for 2015 only) 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. Finally, 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. Figure 1. Determining If an Employer Is Subject to Shared Responsibility (Penalty) Provisions Shared Responsibility (Penalty) Provisions Source: CRS analysis of P.L. 111-148 and P.L. 111-152. . 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.33 (See the section "Employers with Fewer Than 100 FTEs" for information on how transition relief may apply to firms with under 100 FTEs in 2015.) 3 Internal Revenue Code (IRC) §4980H(c)(2), as amended by §1513 and §10106 of the ACA, and as amended and renumbered by §1003 of P.L. 111-152. The statute uses the term full-time employee in the definition of large employer but then expands on the definition of large employer to include both full- and part-time workers. For employers not in existence throughout the preceding calendar year, the determination of whether an employer is large is based on the average number of employees a firm reasonably expected to be employed on business days in the current calendar year. Any reference to an employer includes a reference to any predecessor of that employer. Congressional Research Service 2 ACA: Employer Shared Responsibility Determinations and Potential Penalties 2015.) Large Employer Status: Determined by Full-Time Equivalent Calculation As depicted in Figure 1, the determination of whether an employer is a "large employer" requires the hours worked by both full-time and part-time employees to be calculated. "Full-time" is defined as having worked on average at least 30 hours per week.44 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 used to determine whether a firm is a large employer. Generally, hours worked by seasonal employees are included in this calculation. Overall hours worked by parttimepart-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.55 This calculation determines only whether an employer is considered “large”"large" for purposes of potentially being subject to a penalty.66 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. Example: Full-Time Equivalent Calculation A firm has 35 full-time employees (averaging 30 or more hours per week, or 120 hours per month). Additionally the firm has 20 part-time employees who each work 24 hours per week (96 hours per month). These part-time employees’ employees' hours would be treated as equivalent to 16 full-time employees for the month based on the following calculation: 20 part-time employees x 96 hours = 1,920 total hours worked by part-time employees 1,920 ÷ 120 = 16 FTEs The 16 FTEs added to the 35 full-time employees will result in the firm being considered a “large”"large" employer based on the number of part-time hours worked: 16 FTEs + 35 full-time employees = 51 FTEs. Because 51 > 50, the employer is considered to be a large employer under the ACA employer penalty provisions. 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 have contracted with a temporary help agency may also need to determine if they are the employer for ACA purposes. Finally, businesses that hire seasonal workers have special rules on how to count hours worked by seasonal employees.7 7 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 4 IRC §4980H(c)(4). Section 4980H(c)(2)(E) specifies that for purposes of determining FTEs, the aggregate number of hours of service of employees who are not full-time employees for the month is divided by 120 to get an FTE. However, for purposess of determining who is a full-time worker for the assessment of the actual penalty, proposed regulations released on December 28, 2012, would treat 130 hours of service in a calendar month as the monthly equivalent of 30 hours of service per week (52 x 30). Thus, a worker who worked 130 hours a month would be considered full-time for purposes of the penalty payment. 6 For information on a potential impact of the ACA provisions on smaller (but potentially determined to be large for the purpose of the ACA) businesses, see CRS Report R43181, The Affordable Care Act and Small Business: Economic Issues, by Sean Lowry and Jane G. Gravelle. 7 IRC §4980H(c)(2)(B). An employer will not be considered a large employer if its number of FTEs exceeds 50 for 120 days or less and it is solely the employment of seasonal workers that pushes the employer into the large employer designation. 5 Congressional Research Service 3 ACA: Employer Shared Responsibility Determinations and Potential Penalties controlled groups.8 franchise owner with several restaurants) must follow the IRS aggregation rules governing controlled groups.8 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 Independent Contractors The ACA definition of an employer is based on the common law standard where 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.99 An independent contractor would not be considered an employee for the purposes of the employer penalty calculation. Temporary Staffing Firm Workers Generally, the employer of a temporary agency worker is the agency rather than the firm that has contracted with the agency to provide workers on a temporary basis.10 10 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 health care programs of the Department of Veterans Affairs11 Affairs11 are excluded from calculations to determine if an employer is large.1212 (See Section 4007 of P.L. 114-41.) .) 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 employees13 may be treated differently if (1) an employer would be 8 The controlled group rule applies under §414(b), (c), (m), or (o) of the IRC and includes employees of partnerships, proprietorships, etc., which are under common control by one owner or a group of owners. 9 See http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-orEmployee. When in doubt, a business should file an IRS form SS-8 “Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding,” available at http://www.irs.gov/pub/irs-pdf/fss8.pdf. 10 For details, see the discussion of “temporary staffing firms” within the Internal Revenue Service Bulletin 2014-9, February 24, 2014, http://www.irs.gov/irb/2014-9_IRB/ar05.html. 11 These are the health care programs under Chapters 17 and 18 of 38 U.S.C. 12 For information on TRICARE, see CRS Report RL33537, Military Medical Care: Questions and Answers, by Don J. Jansen. For information on health coverage provided by the Veterans Affairs, see CRS Report R42747, Health Care for Veterans: Answers to Frequently Asked Questions, by Sidath Viranga Panangala. 13 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). Congressional Research Service 4 ACA: Employer Shared Responsibility Determinations and Potential Penalties employees13 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 “fulltime"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 notnot included in the penalty calculations (even though they are included in the determination of a "large employer"). An employer will notnot 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.14 The monthly14 The monthly penalty assessed to an employer that does not offer coverage is equal to the number of its full-time employees minus 30 (the penalty waives the first 80 full-time employees for 2015 only) multiplied by one-twelfth of $2,000 for any applicable month. That penalty will be indexed by a premium adjustment percentage for each calendar year.15 15 Beginning in 2016, the penalty payment amount will be equal to the number of its full-time employees minus 30 multiplied by one-twelfth of the annual penalty. 14 Individuals who are not offered employer-sponsored coverage and who are not eligible for Medicaid or other programs may be eligible for premium tax credits for coverage through an exchange. Eligible individuals will generally have income of at least 100% and up to 400% of the federal poverty level. For details, see CRS Report R41137, Health Insurance Premium Credits in the Patient Protection and Affordable Care Act (ACA) in 2014, by Bernadette Fernandez. 15 The premium adjustment percentage is the national average premium growth rate (IRC §4980H(c)(5) and ACA §1302(c)(4)). Congressional Research Service 5 ACA: Employer Shared Responsibility Determinations and Potential Penalties employees minus 30 multiplied by one-twelfth of the annual penalty. Example 1: Calculating an Employer Penalty When the Employer Does Not Offer Health Coverage An employer of 200 FTEs (of which 120 are full-time employees) does not offer adequate health coverage to at least 70% of its full-time employees (95% beginning in 2016). In one month, total of 177 employees receive premium subsidies. However, only 77 of those employees were considered full-time. (The 100 part-time employees do not directly enter into the calculation for the determination of the penalty.) In 2015, the monthly employer penalty would be calculated as: 1/12 x (number of full-time employees less 80) x $2,000 = monthly penalty 1/12 x (120 - 80) x $2,000 = $6,667. 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: affordability and adequacy.   Affordability: The individual's required contribution toward the plan premium for self-only coverage cannot exceed 9.5% of his/her household income. Adequacy: The health plan must pay for at least 60%, on average, of covered health care expenses to be considered adequate. Employers that offer health insurance coverage that is inadequate or unaffordable will not be not be treated as meeting the employer requirements if at least one full-time employee declines his or her coverage and obtains a premium credit in an exchange plan. If a penalty is assessed, the (health-coverage providing) employer's monthly penalty is based upon the lesser of two calculations:   The number of full-time employees who receive a premium credit multiplied by one-twelfth of $3,000 for any applicable month. The total number of the firm's full-time employees minus 80 in 2015 (30 in subsequent years), multiplied by one-twelfth of $2,000 for any applicable month. After 2015, the penalty amounts will be indexed by a premium adjustment percentage for each subsequent calendar year.16 16 Example 2: Calculating an Employer Penalty When the Employer Offers Health Coverage Offers Health Coverage A large employer of 200 FTEs (of which 120 are full-time employees) offers adequate (but not perhaps not affordable to some employees) health coverage to at least 70% of its full-time employees (95% beginning in 2016). In one month, a total of 177 employees receive premium subsidies (either because the health coverage is unaffordable or not offered to that employee). However, only 77 of those employees were considered full-time. The monthly employer penalty in 2015 would be calculated as the lesser of: 1/12 x (number of full-time employees receiving subsidy) x $3,000 or 1/12 x (number of full-time employees less 80) x $2,000 Since [1/12 x (77) x $3,000] = $19,250 > $6,667 = [1/12 x (120 - 80) x $2,000], the monthly employer penalty would be $6,667. 16 Ibid. Congressional Research Service 6 ACA: Employer Shared Responsibility Determinations and Potential Penalties be $6,667. How to Determine an Employee's Full-Time Status As discussed above, the total ACA employer penalty is based on its 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 Health and Human Services Secretary and the Labor Secretary to provide regulatory guidance to employers to determine full-time status of their employees.17 17 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 these 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. Full-Time Work and Full-Time Equivalency: Federal Law, Statistics, and the ACA Definitions Federal Law, Statistics, and the ACA Definitions In federal law, there is no universal standard for full-time work. In certain targeted situations (such as a tax credit), federal law might rely upon the employer definition to determine full-time status, or the law may use a full-time equivalency calculation based upon a standard of 2,080 hours per year (which assumes 52 weeks per year with an average of 40 hours each week). Some federal statistics (such as the Current Population Survey) classify individuals who work fewer than 35 hours per week to be part-time workers. In other federal statistics (such as the National Compensation Survey), full-time or part-time status is not determined by the number of hours worked but is based instead on the establishment’s 's definition of those terms. Some individuals have suggested that the overtime wage requirements of the Fair Labor Standards Act (FLSA) would be a good reason to define full-time employment as 40 hours per week. The FLSA does not define full-time employment; rather, it sets the conditions (which include working over 40 hours) that would require an employer to pay an employee 1.5 times the hourly wage.18 18 The ACA includes a precise measure of full-time employment in 26 U.S. Code §4980H(c)(4), where it defines a fulltimefull-time employee as an employee who averages at least 30 hours per week during a month. The FTE calculation for purposes of determining “large”"large" employer status generally parallels this definition; work hours of all variable hour workers are summed then divided by 120 to determine a monthly FTE.1919 CRS has searched the Congressional Record for any statement of intent in the ACA for defining 30 hours or more as full-time for the employer penalty calculation and has not found any direct statement explaining congressional intent. Elsewhere within the ACA (26 U.S. Code §45R), the small employer health insurance credit uses a different calculation for full-time work. The calculation of FTEs for determining if the employer is eligible for the credit is based upon 2,080 hours/year (or approximately 40 hours/week). 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.2020 There are three distinct periods in the determination process: measurement, administrative and stability: 17 IRC §4980H(c)(4)(B). For more information on FLSA, see CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview, by Gerald Mayer, Benjamin Collins, and David H. Bradley. 19 For information on the potential impact of changing the ACA’s definition of FTE in the employer size calculation, see CRS In Focus IF10039, Proposals to Change the ACA’s Definition of “Full Time”, by Sean Lowry and Jane G. Gravelle. 20 See Internal Revenue Service Bulletin 2014-9, http://www.irs.gov/irb/2014-9_IRB/ar05.html. 18 Congressional Research Service 7 ACA: Employer Shared Responsibility Determinations and Potential Penalties    administrative and stability: 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. The administrative period is the amount of time an employer may take to identify and enroll full-time employees into the health care coverage. 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. Table 1. Time Frame for Determining Full-Time Status Measurement Period Administrative Period Stability Period Definition Measure (on average) whether employees are full time Identify and enroll full-time employees Penalty may be due relative to employees found to be full time during measurement period Ongoing employees 3 to 12 monthsa Up to 90 days (may neither reduce nor lengthen the measurement or stability period—can overlap prior stability period) At least 6 months but cannot be shorter in duration than measurement period New employees hired as full-time Not applicable Up to 90 days to enroll Not applicable New variable hour and seasonal employees 3 to 12 monthsb Up to 90 days (measurement period and administrative period cannot exceed 13 months)c 3 to 12 months but cannot be longer than measurement period Source:  

Measurement Period

Administrative Period

Stability Period

Definition

Measure (on average) whether employees are full time

Identify and enroll full-time employees

Penalty may be due relative to employees found to be full time during measurement period

Ongoing employees

3 to 12 monthsa

Up to 90 days (may neither reduce nor lengthen the measurement or stability period—can overlap prior stability period)

At least 6 months but cannot be shorter in duration than measurement period

New employees hired as full-time

Not applicable

Up to 90 days to enroll

Not applicable

New variable hour and seasonal employees

3 to 12 monthsb Up to 90 days (measurement period and administrative period cannot exceed 13 months)c

3 to 12 months but cannot be longer than measurement period

Source:
CRS interpretation of Internal Revenue Service Notice 2014-9 http://www.irs.gov/irb/2014-9_IRB/ ar05.html. a. . a. For ongoing employees, this is referred to as the “standard”"standard" measurement period. b. b. For new employees, this is referred to as the “initial”"initial" measurement period. c. c. The initial measurement and administrative period cannot last beyond the final day of the first calendar month beginning on or after the first anniversary of the employee's hiring (approximately 13 months). Congressional Research Service 8 ACA: Employer Shared Responsibility Determinations and Potential Penalties Ongoing Employees 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 three 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.2121 An employer can be subject to a penalty only during the stability period.22 22 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.23 23 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. This applies to new workers who are expected to work full-time. 21 A stability period must be at least six consecutive calendar months and may not be shorter than the standard measurement period designated by the employer. 22 This would require that the employer had at least one full-time employee who entered the exchange and received a premium tax credit and any health insurance coverage offered was not adequate or affordable. 23 Any administrative period between the standard measurement period and stability period may neither reduce nor lengthen the measurement period or stability period. The administrative period following the standard measurement period may last up to 90 days, and it overlaps with the prior stability period to prevent any gaps in coverage. Congressional Research Service 9 ACA: Employer Shared Responsibility Determinations and Potential Penalties work full-time. 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 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 work hours done by seasonal employees 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” Workers" section) and when calculating whether an employee is a full-time worker. Determining Full-Time Worker Status for Seasonal Workers When determining how many employees are considered full-time 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 not consider seasonal workers as full-time workers even if the worked hours counted toward the calculation of whether the employer is a large employer. 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 the determination of hours of service for purposes of Section 4980H with respect to certain categories of employees. As of the date of this report, the IRS guidance for employers to determine full-time status for adjunct faculty, employees with layover hours (including the airline industry), and employers with on-call hours is that employers are required to use a "reasonable method" of crediting hours of service that is consistent with Section 4980H. 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 Congressional Research Service 10 ACA: Employer Shared Responsibility Determinations and Potential Penalties  '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’ 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”"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 firefighters24 firefighters24) are excluded from ACA calculations. Student Workers Student Workers The hours worked by students in positions subsidized through the federal work study program (or equivalent) are excluded in 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 Religious Orders The Treasury Department and the IRS continue to consider additional rules for the determination of hours of service for purposes of Section 4980H with respect to hours worked by members of religious orders for the orders to which they belong. 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. 24 The final regulations provide that hours of service do not include hours worked as a “bona fide volunteer.” For this purpose, the definition of “bona fide volunteer” is generally based on the definition of that term for purposes of §457(e)(11)(B)(i), which provides special rules for length-of-service awards offered to certain volunteer firefighters and emergency medical providers under a municipal deferred compensation plan. For purposes of §4980H, however, bona fide volunteers include any volunteer who is an employee of a government entity or an organization described in §501(c) that is exempt from taxation under §501(a) whose only compensation from that entity or organization is in the form of (1) reimbursement for (or reasonable allowance for) reasonable expenses incurred in the performance of services by volunteers, or (2) reasonable benefits (including length of service awards), and nominal fees, customarily paid by similar entities in connection with the performance of services by volunteers. Congressional Research Service 11 ACA: Employer Shared Responsibility Determinations and Potential Penalties 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 coverage to employees and their dependents. Dependent Coverage: Children Under 26 but Not Spouse For purposes of the employer shared responsibility provision, the term dependentdependent means a child of an employee under 26 years old.2525 Absent knowledge to the contrary, applicable large employers may rely on an employee's representation about that employee's children and the ages of those children. The term dependentdependent does not include the spouse of an employee. Affordable Coverage Affordable Coverage Employers and employees face different determinations of “affordable” coverage.   "affordable" coverage.Employer coverage would be deemed affordable if the employee's portion of the self-only premium for the employer's lowest-cost health coverage plan does not exceed 9.5% of the employee's W-2 wages.26 .26 However, in order for the employee to receive a premium credit, the employee’s 's contribution must be greater than 9.5% of his or her household income in order to be considered not affordable. How Could an Employee's Household Income Be Less Than Wages? An employee's household income may be less than the employee's W-2 wages because of adjustments to gross income for items such as alimony paid or losses due to self-employment. An employer may rely on an employee's W-2 wages for analyzing the affordability of the employer’s 's health coverage with respect to that employee. This safe harbor, however, does not affect an employee’ employee's eligibility for a premium credit, which would continue to be based on the affordability of employer-sponsored coverage relative to an employee's household income. Affordability and Family Health Insurance Coverage: The "Family Glitch" Affordability is determined at an individual level. The definition of “affordable”"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. 25 For more information about dependent coverage under ACA, see CRS Report R41220, Preexisting Condition Exclusion Provisions for Children and Dependent Coverage under the Patient Protection and Affordable Care Act (ACA), by Bernadette Fernandez. 26 Although the determination of whether an employer met the safe-harbor provision would be made after the end of the calendar year, an employer could also use the safe harbor prospectively, at the beginning of the year, by structuring its plan and operations to set the employee contribution at a level so that the employee contribution for each employee would not exceed 9.5% of the employee’s W-2 wages for that year. Congressional Research Service 12 ACA: Employer Shared Responsibility Determinations and Potential Penalties 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%.27 27 The actuarial value calculation for determining minimum value includes the employer employer contributions to health savings accounts and health reimbursement accounts that are part of a high deductible health plan. Implementation and Transition Relief 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 2015.2828 There are up to three forms of transition relief available for employers in 2015.2929 First, large employer status determination may use a measurement period as short as six consecutive months. Second, there is 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 will 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. 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).3030 Additionally, large employers must furnish a similar statement to each full-time employee by January 31 of the following calendar year.31 31 (See Appendix A for details.) Measurement Period Measurement Period Rather than being required to use the full 12 months of 2014 to measure whether an employer has 50 FTEs, an employer may measure any consecutive six-month period during 2014. 27 Actuarial value is a summary measure of a plan’s generosity, expressed as a percentage of medical expense estimated to be paid by the issuer for a standard population and set of allowed charges. Actuarial value reflects the relative share of cost-sharing that may be imposed. On average, the higher the actuarial value of a plan, the lower the cost-sharing for the enrollee. Actuarial value does not consider the cost of premiums and the adequacy of provider networks. Plans with the same actuarial value do not necessarily include the same set of covered benefits. 28 See Internal Revenue Service (IRS), Transition Relief for 2014 Under §§ 6055 (§ 6055 Information Reporting), 6056 (§ 6056 Information Reporting) and 4980H (Employer Shared Responsibility Provisions), Internal Revenue Bulletin: 2013-31, June 29, 2013, http://www.irs.gov/irb/2013-31_IRB/ar08.html. 29 See IRS, “26 CFR Parts 1, 54, and 301, Shared Responsibility for Employers,” 79 Federal Register 8544-8601, February 12, 2014. For details on transition relief for 2014 and 2015, see IRS, “Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act,” http://www.irs.gov/Affordable-Care-Act/ Employers/Questions-and-Answers-on-Employer-Shared-Responsibility-Provisions-Under-the-Affordable-CareAct#Transition. 30 Section 6056 of the IRC. See https://www.federalregister.gov/articles/2014/03/10/2014-05050/information-reportingby-applicable-large-employers-on-health-insurance-coverage-offered-under. 31 Section 6051(a)(14) of the IRC. See http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-EmployerSponsored-Health-Coverage. Congressional Research Service 13 ACA: Employer Shared Responsibility Determinations and Potential Penalties Dependent Coverage 50 FTEs, an employer may measure any consecutive six-month period during 2014. Dependent Coverage An employer that takes steps toward offering dependent health coverage in 2015 will not be subject to the ACA employer penalty solely on account of a failure to offer coverage to dependents for that plan year. This transition relief applies to health plans offered by an employer if    if dependent coverage is not offered, dependent coverage is not adequate, or dependent coverage is offered for some but not all dependents. Employers can 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 has 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 will not apply for any calendar month during the 2015 plan year, including the months during the plan year that fall in 2015. This transition relief applies only if the workforce size is fewer than 100 FTEs, the employer has not reduced its workforce size to qualify for relief, and the employer maintains health care coverage in 2015 that had been offered in 2014. Limited Workforce Size The employer must employ 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) is 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 cannot 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 reduces workforce size or overall hours of service for bona fide business reasons is still eligible for the relief. Maintenance of Previously Offered Health Coverage In order to qualify for transition relief, the employer cannot eliminate or materially reduce the health coverage, if any, it offered as of February 9, 2014. The maintenance requirement must be met for the period beginning on February 9, 2014 and ending on December 31, 2015. (Employers with non-calendar-year plans must meet the maintenance requirement through the last day of the 2015 plan year.) An employer will not be treated as eliminating or materially reducing health coverage if any of these conditions are met:It continues to offer each employee who is eligible for coverage an employer contribution toward the cost of employee-only coverage that either (A) is at least 95% of the dollar amount of the contribution toward such coverage that the Congressional Research Service 14 ACA: Employer Shared Responsibility Determinations and Potential Penalties   employer was offering on February 9, 2014, or (B) is 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 provides minimum value after the change; and It does 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. Congressional Research Service 15 ACA: Employer Shared Responsibility Determinations and Potential Penalties Appendix A. Employer Reporting and Other Requirements 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).32 32 Additionally, 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.33 33 In summary, large employers must provide the following information to their full-time employees34 in 2015:    employees34 in 2015: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 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.35 32 See https://www.federalregister.gov/articles/2014/03/10/2014-05050/information-reporting-by-applicable-largeemployers-on-health-insurance-coverage-offered-under. 33 See http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-Employer-Sponsored-Health-Coverage. 34 For model coverage notices see http://www.dol.gov/ebsa/healthreform/regulations/coverageoptionsnotice.html. 35 For a detailed example see http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-Employer-SponsoredHealth-Coverage. Congressional Research Service 16 ACA: Employer Shared Responsibility Determinations and Potential Penalties that individual.35 If an employer's workers are covered by the FLSA and the employer has more than 200 full-time employees, the employer will face additional requirements in Section 18B the FLSA once regulations are finalized. The employers will be required to automatically enroll new full-time employees in one of the employer's health coverage plans and to continue the enrollment of current employees in health coverage plans offered through the employer. Additionally, requiring employers must provide adequate notice and the opportunity for an employee to opt out of any coverage in which the employee was automatically enrolled.36 36 Employee Benefits Security Administration, EBSA Technical Release No. 2012-01, 2012, http://www.dol.gov/ebsa/ newsroom/tr12-01.html. It remains the Department of Labor’s view that, until final regulations under FLSA §18A are issued and become applicable, employers are not required to comply with FLSA §18A. Congressional Research Service 17 ACA: Employer Shared Responsibility Determinations and Potential Penalties Appendix B. Related Legislative Activity in the 114th Congress In the 114th coverage in which the employee was automatically enrolled.36 Related Legislative Activity in the 114th Congress In the 114th Congress, Section 4007 of P.L. 114-41 (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 health care programs of the Department of Veterans Affairs37Affairs37 are excluded from calculations to determine if an employer is large.38 In the 114th large.38 In the 114th Congress, to date, 27 bills have been introduced related to the employer mandate. Of those bills, 3three would alter the definition of full-time work and 7seven would repeal the employer mandate. See Table B-1 for details. Table B-1. Related Legislative Activity in the 114th Congress Bill Title Summarya Lead Sponsor H.R. 22 Developing a Reliable and Innovative Vision for the Economy Act This bill amends the Internal Revenue Code (IRC) to add a provision to exempt any employee with coverage under a health care program administered by the Department of Defense, including the TRICARE program, or by the Veterans Administration [sic], from classification as an eligible employee of an applicable large employer for purposes of the employer mandate under the Patient Protection and Affordable Care Act (ACA) to provide such employees with minimum essential health care coverage. (P.L. 114-41 contains similar language.) Rep. Rodney Davis H.R. 30 Save American Workers Act of 2015 This bill amends the IRC to change the definition of “fulltime employee" for purposes of the employer mandate to provide minimum essential health care coverage under the ACA from an employee who is employed on average at least 30 hours of service a week to an employee who is employed on average at least 40 hours of service a week. Rep. Todd Young H.R. 210 Student Worker Exemption Act of 2015 Amends the IRC to exclude students who are employed by an institution of higher education (IHE) and carrying a full-time academic workload at the IHE from being counted as full-time employees in calculating the IHE’s shared responsibility regarding health care coverage under the ACA. Rep. Meadows H.R. 248 American Job Protection Act Amends the IRC to repeal provisions added by the ACA requiring certain employers who have a workforce of 50 or more full-time employees to provide health insurance coverage for their employees. Rep. Boustany 37 These are the health care programs under health care programs under Chapters 17 or 18 of 38 U.S.C. For information on TRICARE, see CRS Report RL33537, Military Medical Care: Questions and Answers, by Don J. Jansen. For information on health coverage provided by the Department of Veterans Affairs, see CRS Report R42747, Health Care for Veterans: Answers to Frequently Asked Questions, by Sidath Viranga Panangala. 38 Congressional Research Service 18 ACA: Employer Shared Responsibility Determinations and Potential Penalties Bill Title Summarya H.R. 440 Helping Individuals Regain Employment Act Amends the IRC to exclude from the definition of “fulltime employee,” for purposes of the employer mandate to provide minimum essential health care coverage, any individual who is a long-term unemployed individual. Defines “long-term unemployed individual” as an individual who begins employment after enactment of this act and has been unemployed for 27 weeks or longer. Rep. Boustany H.R. 519 Healthcare Tax Relief and Mandate Repeal Act “This bill amends the IRC to repeal the requirements added by the ACA that (1) individuals purchase and maintain minimum essential health care coverage, and (2) employers who have a workforce of 50 or more full-time employees provide health insurance coverage for their employees.” Rep. Turner H.R. 543 Health Care Choice Act of 2015 “Repeals the health insurance and health coverage expansion requirements of the Patient Protection and Affordable Care Act and related requirements of the Health Care and Education Reconciliation Act of 2010 [including the employer mandate]. Restores provisions of law amended or repealed by those provisions.” Rep. Blackburn H.R. 769 Safeguarding Classrooms Hurt by Obama Care’s Obligatory Levies Amends the IRC to exclude any elementary or secondary school, state or local educational agency, and institution of higher education from the definition of “applicable large employer" for purposes of the employer mandate to provide health care coverage for employees. Rep. Messer H.R. 863 Simplifying Technical Aspects Regarding Seasonality Act of 2015 Amends the IRC to exempt seasonal employees from the definition of “full-time employee" for purposes of the employer mandate to provide employees with minimum essential health care coverage. Defines "seasonal employee" as an employee who is employed in a position for which the customary annual employment is not more than six months and which requires performing labor or services that are ordinarily performed at certain seasons or periods of the year. Rep. Renacci H.R. 1200 American Health Security Act of 2015 “Repeals requirements of the Patient Protection and Affordable Care Act (PPACA) related to health insurance coverage, including requirements concerning state health insurance exchanges.” Rep. McDermott H.R. 1387 Fairness for Farmers Act of 2015 Amends the IRC to exclude nonimmigrant agricultural seasonal workers from the definition of “full-time employee" for purposes of the employer mandate to provide employees with minimum essential health care coverage. Rep. Ellmers H.R. 1624 Protecting Affordable Coverage for Employees Act This bill amends the ACA and Public Health Service Act to include employers with 51 to 100 employees as large employers for purposes of health insurance markets. States have the option to treat these employers as small employers. Currently, employers with 51 to 100 employees are small employers, but before January 1, 2016, states have the option to treat them as large employers. (Under ACA, health insurance offered in the small group market must meet certain requirements that do not apply to the large group market, including the requirement to cover the essential health benefits.) Rep. Guthrie Congressional Research Service Lead Sponsor 19 ACA: Employer Shared Responsibility Determinations and Potential Penalties Bill Title Summarya H.R. 2658 Protecting Volunteer Firefighters and Emergency Responders Act This bill amends the IRC to exclude services rendered by bona-fide volunteers providing firefighting and prevention services, emergency medical services, or ambulance services to a state or local government or a tax-exempt charitable organization from the category of services usually rendered by an employee of an applicable large employer subject to the mandate to provide minimum essential health care coverage under the ACA, thus exempting such employers from ACA requirements with respect to such volunteers. Rep. Barletta H.R. 2881 Small Business Job Protection Act Amends the IRC, as amended by the ACA, to redefine “applicable large employer," for purposes of the mandate requiring employers to provide health insurance for their employees, to mean an employer with at least 100 fulltime employees (currently, 50). Rep. Messer H.R. 3080 Tribal Employment and Jobs Protection Act This bill amends the IRC to exclude from the definition of “applicable large employer" for purposes of the employer health care mandate under the ACA any tribal employer. Defines "tribal employer" as (1) any Indian tribal government or subdivision, (2) any tribal organization, or (3) any corporation or partnership if more than 50% of the equity interest of such an entity is owned by an Indian tribal government or tribal organization. An applicable large employer is defined by ACA as an employer who employs 50 or more full-time employees who provide services on average at least 30 hours per week. Rep. Noem H.J.Res 61 Hire More Heroes Act of 2015 This joint resolution amends the IRC to exempt any employee with coverage under a health care program administered by the Department of Defense, including the TRICARE program, or by the Veterans Administration from classification as an eligible employee of an applicable large employer for purposes of the employer mandate under the ACA to provide eligible employees with minimum essential health care coverage. (P.L. 114-41 contains a similar language.) Rep. Davis S. 12 Hire More Heroes Act of 2015 This bill amends the IRC to add a provision to exempt any employee with coverage under a health care program administered by the Department of Defense, including the TRICARE program, or by the Veterans Administration, from classification as an eligible employee of an applicable large employer for purposes of the employer mandate under the ACA to provide such employees with minimum essential health care coverage. (P.L. 114-41 contains similar language.) Sen. Blunt S. 30 Forty Hours is Full Time Act of 2015 Amends the IRC, with respect to the employer mandate to provide health care coverage, to (1) modify the formula for calculating the number of full-time employees employed by an applicable large employer subject to the mandate; and (2) define a “full-time employee" as an employee who is employed on average at least 40 hours per week (currently, 30 hours). Sen. Collins Congressional Research Service Lead Sponsor 20 ACA: Employer Shared Responsibility Determinations and Potential Penalties Bill Title Summarya S. 38 Helping Individuals Regain Employment Act Amends the IRC to exclude from the definition of “fulltime employee," for purposes of the employer mandate to provide minimum essential health care coverage, any individual who is a long-term unemployed individual. Defines "long-term unemployed individual" as an individual who begins employment after enactment of this act and has been unemployed for 27 weeks or longer. Sen. Thune S. 157 No Obamacare Mandate Act “This bill repeals provisions of the Patient Protection and Affordable Care Act that impose: (1) an excise tax on medical devices, (2) a requirement that individuals obtain minimum essential health care coverage [i.e., individual mandate], and (3) a penalty on large employers who fail to offer health care coverage to their eligible employees.” Sen. Cassidy S. 305 American Job Protection Act Repeals provisions of the IRC, as added by the ACA, that (1) impose fines on large employers (employers with 50 or more full-time employees) who fail to offer their fulltime employees the opportunity to enroll in minimum essential health insurance coverage, and (2) require large employers to file a report with the Department of the Treasury on health insurance coverage provided to their full-time employees. Applies the IRC as if those provisions had never been enacted. Sen. Hatch S. 420 Protecting Volunteer Firefighters and Emergency Responders Act This bill amends the IRC to exclude services rendered by bona-fide volunteers providing firefighting and prevention services, emergency medical services, or ambulance services to a state or local government or a tax-exempt charitable organization from the category of services usually rendered by an employee of an applicable large employer subject to the mandate to provide minimum essential health care coverage under ACA, thus exempting such employers from ACA requirements with respect to such volunteers. Sen. Toomey S. 432 Small Business Fairness in Health Care Act Amends the IRC, as amended by the ACA, to (1) exempt a small business concern, as defined by the Small Business Act, from the ACA employer mandate to provide employees with minimum essential health care coverage; and (2) redefine “full-time employee," for purposes of such mandate, as an employee who is employed on average at least 40 (currently, 30) hours a week. Sen. Enzi S. 470 Safeguarding Classrooms Hurt by ObamaCare’s Obligatory Levies Amends the IRC to exclude any elementary or secondary school, state or local educational agency, and institution of higher education from the definition of “applicable large employer" for purposes of the employer mandate to provide health care coverage for employees. Sen. Thune S. 647 Health Care Choice Act of 2015 Repeals the health insurance and health coverage expansion requirements of the ACA and related requirements of the Health Care and Education Reconciliation Act of 2010 [including the individual mandate]. Restores provisions of law amended or repealed by those provisions. Sen. Cruz Congressional Research Service Lead Sponsor 21 ACA: Employer Shared Responsibility Determinations and Potential Penalties Bill Title Summarya Lead Sponsor S.S. 1415 Small Business Stability Act Amends the IRC to modify the definition of “applicable large employer," for purposes of the mandate under the ACA to provide employees with minimum essential health care coverage, to mean an employer who employed an average of at least 101 (currently, 50) fulltime employees during the preceding calendar year. Sen. Heitkamp S. 1771 Tribal Employment and Jobs Protection Act This bill amends the IRC to exclude from the definition of “applicable large employer" for purposes of the employer health care mandate under ACA: (1) any Indian tribal government or subdivision, (2) any tribal organization, or (3) any corporation or partnership if more than 50% of the equity interest of such an entity is owned by an Indian tribal government or tribal organization. An applicable large employer is defined by PPACA as an employer who employs 50 or more fulltime employees who provide services on average at least 30 hours per week. Sen. Daines Source: Congressional Research Service. a. The summaries are taken from Congress.gov, and they only include information about the provisions in the bill related to the employer mandate. Author Contact Information Julie M. Whittaker Specialist in Income Security jwhittaker@crs.loc.gov, 7-2587 Congressional Research Service 22 114th Congress

Bill

Title

Summarya

Lead Sponsor

H.R. 22

Developing a Reliable and Innovative Vision for the Economy Act

This bill amends the Internal Revenue Code (IRC) to add a provision to exempt any employee with coverage under a health care program administered by the Department of Defense, including the TRICARE program, or by the Veterans Administration [sic], from classification as an eligible employee of an applicable large employer for purposes of the employer mandate under the Patient Protection and Affordable Care Act (ACA) to provide such employees with minimum essential health care coverage. (P.L. 114-41 contains similar language.)

Rep. Rodney Davis

H.R. 30

Save American Workers Act of 2015

This bill amends the IRC to change the definition of "full-time employee" for purposes of the employer mandate to provide minimum essential health care coverage under the ACA from an employee who is employed on average at least 30 hours of service a week to an employee who is employed on average at least 40 hours of service a week.

Rep. Todd Young

H.R. 210

Student Worker Exemption Act of 2015

Amends the IRC to exclude students who are employed by an institution of higher education (IHE) and carrying a full-time academic workload at the IHE from being counted as full-time employees in calculating the IHE's shared responsibility regarding health care coverage under the ACA.

Rep. Meadows

H.R. 248

American Job Protection Act

Amends the IRC to repeal provisions added by the ACA requiring certain employers who have a workforce of 50 or more full-time employees to provide health insurance coverage for their employees.

Rep. Boustany

H.R. 440

Helping Individuals Regain Employment Act

Amends the IRC to exclude from the definition of "full-time employee," for purposes of the employer mandate to provide minimum essential health care coverage, any individual who is a long-term unemployed individual. Defines "long-term unemployed individual" as an individual who begins employment after enactment of this act and has been unemployed for 27 weeks or longer.

Rep. Boustany

H.R. 519

Healthcare Tax Relief and Mandate Repeal Act

"This bill amends the IRC to repeal the requirements added by the ACA that (1) individuals purchase and maintain minimum essential health care coverage, and (2) employers who have a workforce of 50 or more full-time employees provide health insurance coverage for their employees."

Rep. Turner

H.R. 543

Health Care Choice Act of 2015

"Repeals the health insurance and health coverage expansion requirements of the Patient Protection and Affordable Care Act and related requirements of the Health Care and Education Reconciliation Act of 2010 [including the employer mandate]. Restores provisions of law amended or repealed by those provisions."

Rep. Blackburn

H.R. 769

Safeguarding Classrooms Hurt by Obama Care's Obligatory Levies

Amends the IRC to exclude any elementary or secondary school, state or local educational agency, and institution of higher education from the definition of "applicable large employer" for purposes of the employer mandate to provide health care coverage for employees.

Rep. Messer

H.R. 863

Simplifying Technical Aspects Regarding Seasonality Act of 2015

Amends the IRC to exempt seasonal employees from the definition of "full-time employee" for purposes of the employer mandate to provide employees with minimum essential health care coverage. Defines "seasonal employee" as an employee who is employed in a position for which the customary annual employment is not more than six months and which requires performing labor or services that are ordinarily performed at certain seasons or periods of the year.

Rep. Renacci

H.R. 1200

American Health Security Act of 2015

"Repeals requirements of the Patient Protection and Affordable Care Act (PPACA) related to health insurance coverage, including requirements concerning state health insurance exchanges."

Rep. McDermott

H.R. 1387

Fairness for Farmers Act of 2015

Amends the IRC to exclude nonimmigrant agricultural seasonal workers from the definition of "full-time employee" for purposes of the employer mandate to provide employees with minimum essential health care coverage.

Rep. Ellmers

H.R. 1624

Protecting Affordable Coverage for Employees Act

This bill amends the ACA and Public Health Service Act to include employers with 51 to 100 employees as large employers for purposes of health insurance markets. States have the option to treat these employers as small employers. Currently, employers with 51 to 100 employees are small employers, but before January 1, 2016, states have the option to treat them as large employers. (Under ACA, health insurance offered in the small group market must meet certain requirements that do not apply to the large group market, including the requirement to cover the essential health benefits.)

Rep. Guthrie

H.R. 2658

Protecting Volunteer Firefighters and Emergency Responders Act

This bill amends the IRC to exclude services rendered by bona-fide volunteers providing firefighting and prevention services, emergency medical services, or ambulance services to a state or local government or a tax-exempt charitable organization from the category of services usually rendered by an employee of an applicable large employer subject to the mandate to provide minimum essential health care coverage under the ACA, thus exempting such employers from ACA requirements with respect to such volunteers.

Rep. Barletta

H.R. 2881

Small Business Job Protection Act

Amends the IRC, as amended by the ACA, to redefine "applicable large employer," for purposes of the mandate requiring employers to provide health insurance for their employees, to mean an employer with at least 100 full-time employees (currently, 50).

Rep. Messer

H.R. 3080

Tribal Employment and Jobs Protection Act

This bill amends the IRC to exclude from the definition of "applicable large employer" for purposes of the employer health care mandate under the ACA any tribal employer. Defines "tribal employer" as (1) any Indian tribal government or subdivision, (2) any tribal organization, or (3) any corporation or partnership if more than 50% of the equity interest of such an entity is owned by an Indian tribal government or tribal organization. An applicable large employer is defined by ACA as an employer who employs 50 or more full-time employees who provide services on average at least 30 hours per week.

Rep. Noem

H.J.Res 61

Hire More Heroes Act of 2015

This joint resolution amends the IRC to exempt any employee with coverage under a health care program administered by the Department of Defense, including the TRICARE program, or by the Veterans Administration from classification as an eligible employee of an applicable large employer for purposes of the employer mandate under the ACA to provide eligible employees with minimum essential health care coverage. (P.L. 114-41 contains a similar language.)

Rep. Davis

S. 12

Hire More Heroes Act of 2015

This bill amends the IRC to add a provision to exempt any employee with coverage under a health care program administered by the Department of Defense, including the TRICARE program, or by the Veterans Administration, from classification as an eligible employee of an applicable large employer for purposes of the employer mandate under the ACA to provide such employees with minimum essential health care coverage. (P.L. 114-41 contains similar language.)

Sen. Blunt

S. 30

Forty Hours is Full Time Act of 2015

Amends the IRC, with respect to the employer mandate to provide health care coverage, to (1) modify the formula for calculating the number of full-time employees employed by an applicable large employer subject to the mandate; and (2) define a "full-time employee" as an employee who is employed on average at least 40 hours per week (currently, 30 hours).

Sen. Collins

S. 38

Helping Individuals Regain Employment Act

Amends the IRC to exclude from the definition of "full-time employee," for purposes of the employer mandate to provide minimum essential health care coverage, any individual who is a long-term unemployed individual. Defines "long-term unemployed individual" as an individual who begins employment after enactment of this act and has been unemployed for 27 weeks or longer.

Sen. Thune

S. 157

No Obamacare Mandate Act

"This bill repeals provisions of the Patient Protection and Affordable Care Act that impose: (1) an excise tax on medical devices, (2) a requirement that individuals obtain minimum essential health care coverage [i.e., individual mandate], and (3) a penalty on large employers who fail to offer health care coverage to their eligible employees."

Sen. Cassidy

S. 305

American Job Protection Act

Repeals provisions of the IRC, as added by the ACA, that (1) impose fines on large employers (employers with 50 or more full-time employees) who fail to offer their full-time employees the opportunity to enroll in minimum essential health insurance coverage, and (2) require large employers to file a report with the Department of the Treasury on health insurance coverage provided to their full-time employees. Applies the IRC as if those provisions had never been enacted.

Sen. Hatch

S. 420

Protecting Volunteer Firefighters and Emergency Responders Act

This bill amends the IRC to exclude services rendered by bona-fide volunteers providing firefighting and prevention services, emergency medical services, or ambulance services to a state or local government or a tax-exempt charitable organization from the category of services usually rendered by an employee of an applicable large employer subject to the mandate to provide minimum essential health care coverage under ACA, thus exempting such employers from ACA requirements with respect to such volunteers.

Sen. Toomey

S. 432

Small Business Fairness in Health Care Act

Amends the IRC, as amended by the ACA, to (1) exempt a small business concern, as defined by the Small Business Act, from the ACA employer mandate to provide employees with minimum essential health care coverage; and (2) redefine "full-time employee," for purposes of such mandate, as an employee who is employed on average at least 40 (currently, 30) hours a week.

Sen. Enzi

S. 470

Safeguarding Classrooms Hurt by ObamaCare's Obligatory Levies

Amends the IRC to exclude any elementary or secondary school, state or local educational agency, and institution of higher education from the definition of "applicable large employer" for purposes of the employer mandate to provide health care coverage for employees.

Sen. Thune

S. 647

Health Care Choice Act of 2015

Repeals the health insurance and health coverage expansion requirements of the ACA and related requirements of the Health Care and Education Reconciliation Act of 2010 [including the individual mandate]. Restores provisions of law amended or repealed by those provisions.

Sen. Cruz

S.S. 1415

Small Business Stability Act

Amends the IRC to modify the definition of "applicable large employer," for purposes of the mandate under the ACA to provide employees with minimum essential health care coverage, to mean an employer who employed an average of at least 101 (currently, 50) full-time employees during the preceding calendar year.

Sen. Heitkamp

S. 1771

Tribal Employment and Jobs Protection Act

This bill amends the IRC to exclude from the definition of "applicable large employer" for purposes of the employer health care mandate under ACA: (1) any Indian tribal government or subdivision, (2) any tribal organization, or (3) any corporation or partnership if more than 50% of the equity interest of such an entity is owned by an Indian tribal government or tribal organization. An applicable large employer is defined by PPACA as an employer who employs 50 or more full-time employees who provide services on average at least 30 hours per week.

Sen. Daines

Source: Congressional Research Service.

a. The summaries are taken from Congress.gov, and they only include information about the provisions in the bill related to the employer mandate.

Author Contact Information

[author name scrubbed], Specialist in Income Security ([email address scrubbed], [phone number scrubbed])

Footnotes

1.

For information on the individual shared responsibility provisions, see CRS Report R41331, Individual Mandate Under ACA, by [author name scrubbed].

2.

For more information about exchanges under the ACA, see CRS Report R44065, Overview of Health Insurance Exchanges, coordinated by [author name scrubbed]. For more information on premium credits in particular, see CRS Report R41137, Health Insurance Premium Credits in the Patient Protection and Affordable Care Act (ACA) in 2014, by [author name scrubbed] and CRS Report R43833, Premium Tax Credits and Federal Health Insurance Exchanges: Questions and Answers, by [author name scrubbed] et al.

3.

Internal Revenue Code (IRC) §4980H(c)(2), as amended by §1513 and §10106 of the ACA, and as amended and renumbered by §1003 of P.L. 111-152. The statute uses the term full-time employee in the definition of large employer but then expands on the definition of large employer to include both full- and part-time workers. For employers not in existence throughout the preceding calendar year, the determination of whether an employer is large is based on the average number of employees a firm reasonably expected to be employed on business days in the current calendar year. Any reference to an employer includes a reference to any predecessor of that employer.

4.

IRC §4980H(c)(4).

5.

Section 4980H(c)(2)(E) specifies that for purposes of determining FTEs, the aggregate number of hours of service of employees who are not full-time employees for the month is divided by 120 to get an FTE. However, for purposess of determining who is a full-time worker for the assessment of the actual penalty, proposed regulations released on December 28, 2012, would treat 130 hours of service in a calendar month as the monthly equivalent of 30 hours of service per week (52 x 30). Thus, a worker who worked 130 hours a month would be considered full-time for purposes of the penalty payment.

6.

For information on a potential impact of the ACA provisions on smaller (but potentially determined to be large for the purpose of the ACA) businesses, see CRS Report R43181, The Affordable Care Act and Small Business: Economic Issues, by [author name scrubbed] and [author name scrubbed].

7.

IRC §4980H(c)(2)(B). An employer will not be considered a large employer if its number of FTEs exceeds 50 for 120 days or less and it is solely the employment of seasonal workers that pushes the employer into the large employer designation.

8.

The controlled group rule applies under §414(b), (c), (m), or (o) of the IRC and includes employees of partnerships, proprietorships, etc., which are under common control by one owner or a group of owners.

9.

See http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee. When in doubt, a business should file an IRS form SS-8 "Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding," available at http://www.irs.gov/pub/irs-pdf/fss8.pdf.

10.

For details, see the discussion of "temporary staffing firms" within the Internal Revenue Service Bulletin 2014-9, February 24, 2014, http://www.irs.gov/irb/2014-9_IRB/ar05.html.

11.

These are the health care programs under Chapters 17 and 18 of 38 U.S.C.

12.

For information on TRICARE, see CRS Report RL33537, Military Medical Care: Questions and Answers, by [author name scrubbed]. For information on health coverage provided by the Veterans Affairs, see CRS Report R42747, Health Care for Veterans: Answers to Frequently Asked Questions, by [author name scrubbed].

13.

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).

14.

Individuals who are not offered employer-sponsored coverage and who are not eligible for Medicaid or other programs may be eligible for premium tax credits for coverage through an exchange. Eligible individuals will generally have income of at least 100% and up to 400% of the federal poverty level. For details, see CRS Report R41137, Health Insurance Premium Credits in the Patient Protection and Affordable Care Act (ACA) in 2014, by [author name scrubbed].

15.

The premium adjustment percentage is the national average premium growth rate (IRC §4980H(c)(5) and ACA §1302(c)(4)).

16.

Ibid.

17.

IRC §4980H(c)(4)(B).

18.

For more information on FLSA, see CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

19.

For information on the potential impact of changing the ACA's definition of FTE in the employer size calculation, see CRS In Focus IF10039, Proposals to Change the ACA's Definition of "Full Time", by [author name scrubbed] and [author name scrubbed].

20.

See Internal Revenue Service Bulletin 2014-9, http://www.irs.gov/irb/2014-9_IRB/ar05.html.

21.

A stability period must be at least six consecutive calendar months and may not be shorter than the standard measurement period designated by the employer.

22.

This would require that the employer had at least one full-time employee who entered the exchange and received a premium tax credit and any health insurance coverage offered was not adequate or affordable.

23.

Any administrative period between the standard measurement period and stability period may neither reduce nor lengthen the measurement period or stability period. The administrative period following the standard measurement period may last up to 90 days, and it overlaps with the prior stability period to prevent any gaps in coverage.

24.

The final regulations provide that hours of service do not include hours worked as a "bona fide volunteer." For this purpose, the definition of "bona fide volunteer" is generally based on the definition of that term for purposes of §457(e)(11)(B)(i), which provides special rules for length-of-service awards offered to certain volunteer firefighters and emergency medical providers under a municipal deferred compensation plan. For purposes of §4980H, however, bona fide volunteers include any volunteer who is an employee of a government entity or an organization described in §501(c) that is exempt from taxation under §501(a) whose only compensation from that entity or organization is in the form of (1) reimbursement for (or reasonable allowance for) reasonable expenses incurred in the performance of services by volunteers, or (2) reasonable benefits (including length of service awards), and nominal fees, customarily paid by similar entities in connection with the performance of services by volunteers.

25.

For more information about dependent coverage under ACA, see CRS Report R41220, Preexisting Condition Exclusion Provisions for Children and Dependent Coverage under the Patient Protection and Affordable Care Act (ACA), by [author name scrubbed].

26.

Although the determination of whether an employer met the safe-harbor provision would be made after the end of the calendar year, an employer could also use the safe harbor prospectively, at the beginning of the year, by structuring its plan and operations to set the employee contribution at a level so that the employee contribution for each employee would not exceed 9.5% of the employee's W-2 wages for that year.

27.

Actuarial value is a summary measure of a plan's generosity, expressed as a percentage of medical expense estimated to be paid by the issuer for a standard population and set of allowed charges. Actuarial value reflects the relative share of cost-sharing that may be imposed. On average, the higher the actuarial value of a plan, the lower the cost-sharing for the enrollee. Actuarial value does not consider the cost of premiums and the adequacy of provider networks. Plans with the same actuarial value do not necessarily include the same set of covered benefits.

28.

See Internal Revenue Service (IRS), Transition Relief for 2014 Under §§6055 (§6055 Information Reporting), 6056 (§6056 Information Reporting) and 4980H (Employer Shared Responsibility Provisions), Internal Revenue Bulletin: 2013-31, June 29, 2013, http://www.irs.gov/irb/2013-31_IRB/ar08.html.

29.

See IRS, "26 CFR Parts 1, 54, and 301, Shared Responsibility for Employers," 79 Federal Register 8544-8601, February 12, 2014. For details on transition relief for 2014 and 2015, see IRS, "Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act," http://www.irs.gov/Affordable-Care-Act/Employers/Questions-and-Answers-on-Employer-Shared-Responsibility-Provisions-Under-the-Affordable-Care-Act#Transition.

30.

Section 6056 of the IRC. See https://www.federalregister.gov/articles/2014/03/10/2014-05050/information-reporting-by-applicable-large-employers-on-health-insurance-coverage-offered-under.

31.

Section 6051(a)(14) of the IRC. See http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-Employer-Sponsored-Health-Coverage.

32.

See https://www.federalregister.gov/articles/2014/03/10/2014-05050/information-reporting-by-applicable-large-employers-on-health-insurance-coverage-offered-under.

33.

See http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-Employer-Sponsored-Health-Coverage.

34.

For model coverage notices see http://www.dol.gov/ebsa/healthreform/regulations/coverageoptionsnotice.html.

35.

For a detailed example see http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-Employer-Sponsored-Health-Coverage.

36.

Employee Benefits Security Administration, EBSA Technical Release No. 2012-01, 2012, http://www.dol.gov/ebsa/newsroom/tr12-01.html. It remains the Department of Labor's view that, until final regulations under FLSA §18A are issued and become applicable, employers are not required to comply with FLSA §18A.

37.

These are the health care programs under health care programs under Chapters 17 or 18 of 38 U.S.C.

38.

For information on TRICARE, see CRS Report RL33537, Military Medical Care: Questions and Answers, by [author name scrubbed]. For information on health coverage provided by the Department of Veterans Affairs, see CRS Report R42747, Health Care for Veterans: Answers to Frequently Asked Questions, by [author name scrubbed].