The Affordable Care Act’s (ACA) Employer
Shared Responsibility Determination and the
Potential Employer Penalty
Julie M. Whittaker
Specialist in Income Security
April 19, 2016
Congressional Research Service
7-5700
www.crs.gov
R43981

---

link to page 19 link to page 21 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. 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.
As of 2015, employers with at least 50 full-time equivalent (FTE) employees are subject to the
shared responsibility provisions. However, in 2015 only, employers with between 50 and 100
FTE employees were eligible for transition relief if certain criteria were 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. 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 FTEs 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. Employers must provide both
affordable and adequate health insurance coverage to avoid paying a penalty. Coverage is
considered affordable if the employee’s required contribution to the plan does not exceed 9.66%
of the employee’s household income for 2016. However, the Internal Revenue Service (IRS)
allows employers to use the employee’s W-2 income in lieu of household income for this
calculation (because 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 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 A provides a list of employer reporting requirements. 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 ...................... 9
Variable Hour Employees ................................................................................................... 9
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 ..................................................... 11
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).................................................................................... 12
Implementation and Transition Relief Through 2015 ................................................................... 13
Measurement Period ................................................................................................................ 13
Dependent Coverage ............................................................................................................... 13
Employers with Fewer Than 100 FTEs ................................................................................... 14
Limited Workforce Size .................................................................................................... 14
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 in 2016 .................................................................... 2
Congressional Research Service

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties


Tables
Table 1. Time Frame for Determining Full-Time Status ................................................................. 8

Table B-1. Related Legislative Activity in the 114th Congress ...................................................... 17

Appendixes
Appendix A. Employer Reporting and Other Requirements ......................................................... 15
Appendix B. Related Legislative Activity in the 114th Congress .................................................. 17

Contacts
Author Contact Information .......................................................................................................... 21

Congressional Research Service

---

link to page 17 link to page 6 ACA: Employer Shared Responsibility Determinations and Potential Penalties

he Patient Protection and Affordable Care Act (ACA; P.L. 111-148, as amended) expanded
insurance coverage in the United States through its “shared responsibility” provisions:
T Employers either provide health coverage or face potential employer tax penalties;
likewise, individuals purchase health coverage or face potential individual tax penalties.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.
Since 2015, employers with at least 50 full-time equivalent (FTE) employees are subject to the
employer shared responsibility provisions under Section 4908H of the Internal Revenue Code
(IRC) as amended by the ACA. However, in 2015, employers with between 50 and 100 FTE
employees were eligible for transition relief if certain criteria were met. (For details, see
“Implementation and Transition Relief” below.)
This report describes the potential employer penalties as well as regulations to implement the
ACA employer provisions. The regulations address insurance coverage requirements,
methodologies for determining whether a worker is considered full time, provisions relating to
seasonal workers and corporate franchises, and other reporting requirements.
For an economic analysis of the employer penalty and policy options to modify the penalty, see
CRS Report R43181, The Affordable Care Act and Small Business: Economic Issues, by Sean
Lowry and Jane G. Gravelle.
Employer Shared Responsibility Determinations
Applies to All Employers
The ACA employer shared responsibility provisions apply to all common law employers,
including government entities (such as federal, state, local, or Indian tribal government entities)
and nonprofit organizations that are exempt from federal income taxes.
Potential Employer Penalty Requirements
The potential employer penalty does not explicitly require that employers offer their employees
acceptable health coverage. However, it does impose penalties on certain firms with at least 50
FTE employees if one or more of their full-time employees obtains a premium tax credit through
the newly established health insurance exchanges.2 An individual may be eligible for a premium
tax credit if his or her income is between certain thresholds and the individual’s employer does
not offer health coverage or offers insurance that is “not affordable” or does not provide
“minimum value,” as defined by the ACA. As shown in Figure 1, determining the potential
exposure to the employer penalty is a multi-stage process.

1 For information on the individual shared responsibility provisions, see CRS Report R41331, Individual Mandate
Under the ACA, by Annie L. Mach.
2 For more information about exchanges under the Affordable Care Act (ACA), see CRS Report R44065, Overview of
Health Insurance Exchanges, coordinated by Namrata K. Uberoi . For more information on premium credits in
particular, CRS Report R44425, Eligibility and Determination of Health Insurance Premium Tax Credits and Cost-
Sharing Subsidies: In Brief, by Bernadette Fernandez.
Congressional Research Service
1

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

 First, the firm must be a large employer with at least 50 FTEs to be potentially
subject to the penalty.
 Second, only workers who are considered to be full-time (generally, averaging 30
hours or more per week) may trigger the penalty.
 Third, the actual calculation of the penalty will depend upon whether the
employer currently provides health coverage to its full-time employees, if the
coverage is considered adequate and affordable as defined by the ACA, and the
number of full-time employees.
Figure 1. Determining If an Employer Is Subject to
Shared Responsibility (Penalty) Provisions in 2016

Source: Congressional Research Service (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.3

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

---

link to page 6 link to page 11 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Large Employer Status: Determined by Full-Time Equivalent Calculation
As depicted in Figure 1, to determine whether an employer is a large employer, the hours worked
by both full-time and part-time employees must be calculated. Full-time is defined as having
worked on average at least 30 hours per week.4 Hours worked by part-time employees (i.e., those
working less than 30 hours per week) are converted into FTEs and are included in the calculation.
In general, hours worked by seasonal employees are also included in this calculation. Overall
hours worked by part-time employees during a month are added up, and the total is divided by
120 and added to the number of full-time employees to get the number of FTE workers.5 This
calculation determines only whether an employer is considered large for purposes of potentially
being subject to a penalty.6 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 ful -time employees (averaging 30 or more hours per week, or 120 hours per month). In addition, the
firm has 20 part-time employees who each work 24 hours per week (96 hours per month). Because of the hours
worked, these part-time employees would be treated as equivalent to 16 ful -time employees for the month based on
the fol owing 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 ful -time employees wil result in the firm being considered a “large” employer based on
the number of part-time hours worked:
16 FTEs + 35 ful -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 contract with a temporary staffing agency must determine
which entity is the employer (i.e., the firm or the staffing agency) for ACA purposes. Finally,
businesses that hire seasonal workers have special rules on how to count hours worked by
seasonal employees.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).
5 Section 4980H(c)(2)(E) specifies that for purposes of determining full-time equivalents (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 seasonal workers who push the employer into the large employer designation.
Congressional Research Service
3

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

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
The ACA definition of an employer is based on the common law standard in which a worker is
considered to be an employee if the worker is subject to the will and control of the employer not
only as to what shall be done but how it shall be done. The potential employer penalty applies to
all common law employers, including government entities (such as federal, state, local, or Indian
tribal government entities) and nonprofit organizations that are exempt from federal income
taxes.
An independent contractor is a worker who controls what will be done and how it will be done
and for whom the contract dictates the desired result of the work. The IRS provides further
guidance on the distinction between employees and independent contractors.9 An independent
contractor would not be considered an employee for the purposes of the employer penalty
calculation.
Temporary Staffing Firm Workers
In general, the employer of a temporary agency worker is the employing agency rather than the
firm that has contracted with the agency to provide workers on a temporary basis.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 Department of Veterans Affairs11 health care programs,
are excluded from calculations to determine if an employer is large.12
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-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 Section 4007 of P.L. 114-41. 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.
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

---

link to page 6 ACA: Employer Shared Responsibility Determinations and Potential Penalties

considered a large employer for fewer than 120 days, and (2) for those days the hours worked by
seasonal employees are what push the employer’s FTE calculation above 50 FTEs.
If these two conditions are met, the employer may exclude the hours worked by seasonal
employees and thus would not be considered a large employer. Otherwise, all hours by all
employees (including seasonal workers) are applied to determine large-employer status.
Potential Penalties on Large Employers
Regardless of whether a large employer offers coverage, it will be potentially liable for a shared
responsibility tax (penalty) only if at least one of its full-time employees obtains coverage through
an exchange and receives a premium tax credit. For purposes of determining the penalty, a full-
time employee includes only those individuals working on average 30 hours or more per week.
As shown in Figure 1, part-time workers are not included in the penalty calculations (even
though they are included in the determination of a “large employer”). An employer will not pay a
penalty for any part-time worker even if that part-time employee receives a premium credit. As
discussed under implementation issues below, employers are not likely to pay a penalty based
upon seasonal workers receiving a premium credit if they work less than 30 hours on average
over a pre-specified time period (up to 12 months).
Large Employers Determined to Not Offer Health Coverage
A large employer that does not offer health coverage will be subject to the ACA employer penalty
only if any of its full-time employees obtain coverage through an exchange and receive a
premium tax credit.14
In 2016, the monthly penalty assessed to an employer that does not offer coverage is equal to the
number of its full-time employees minus 30 multiplied by one-twelfth of $2,160 for any
applicable month. That penalty is indexed by a premium adjustment percentage for each calendar
year.15

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 R44425,
Eligibility and Determination of Health Insurance Premium Tax Credits and Cost-Sharing Subsidies: In Brief, by
Bernadette Fernandez.
15 The premium adjustment percentage is the national average premium growth rate (IRC §4980H(c)(5) and ACA
§1302(c)(4)). The adjustments for 2015 and 2016 were published in Internal Revenue Service Bulletin 2015-87, p. 20 at
https://www.irs.gov/pub/irs-drop/n-15-87.pdf.
Congressional Research Service
5

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

Example 1: Calculating an Employer Penalty When the Employer
Does Not Offer Health Coverage in 2016
A large employer of 200 FTEs (of which 120 are ful -time employees) does not offer adequate health coverage to at
least 95% of its ful -time employees. At least one ful -time employee receives a premium subsidy.
In 2016, the monthly employer penalty would be calculated as:
1/12 x (number of ful -time employees less 30) x $2,160 = monthly penalty
1/12 x (120 - 30) x $2,160 = $16,200.
Large Employers Determined to Offer Health Coverage
Large employers that offer health coverage may face a penalty if the employer’s coverage fails to
meet one of two criteria:
1. Affordability—The individual’s required contribution toward the plan premium
for self-only coverage cannot exceed 9.66% of his/her household income in
2016.
2. Adequacy—The health plan must pay for at least 60%, on average, of covered
health care expenses to be considered adequate.
Employers that offer unaffordable or inadequate health insurance coverage do not meet the
employer requirements if at least one full-time employee declines the coverage and obtains a
premium credit in an exchange plan.
The penalty amounts are indexed by a premium adjustment percentage for each subsequent
calendar year.16 In 2016, the penalty payment amount is the lesser of
 the number of full-time employees who receive a premium credit multiplied by
one-twelfth of $3,240 for any applicable month, or
 the total number of the firm’s full-time employees minus 30, multiplied by one-
twelfth of $2,160 for any applicable month.

Example 2: Calculating an Employer Penalty When the Employer
Offers Health Coverage in 2016
A large employer of 200 FTEs (of which 120 are ful -time employees) offers adequate (but perhaps not affordable to
some employees) health coverage to at least 95% of its ful -time employees. In one month, 77 of the employer’s ful -
time employees received a subsidy.
The monthly employer penalty in 2016 would be calculated as the lesser of
1/12 x (number of ful -time employees receiving subsidy) x $3,240=$20,790
or
1/12 x (number of ful -time employees less 80) x $2,160+ $16,200

Since $20,790 > $16,200,
the monthly employer penalty would be $16,200.

16 Ibid.
Congressional Research Service
6

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

How to Determine an Employee’s Full-Time Status
As discussed above, the total ACA employer penalty is based on the number of full-time
employees. The ACA specified that working 30 hours or more per week is considered full-time.
However, the statute did not specify what time period (i.e., monthly or annually) employers
would use to determine if a worker is full-time. The ACA directed the Department of Health and
Human Services and the Department of Labor to provide regulatory guidance to employers for
determining their employees’ full-time status.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 this 130 hours of service monthly equivalency applies for
both the look-back measurement method and the monthly measurement method for determining
full-time employee status.
Full-Time Work and Full-Time Equivalency:
Federal Law, Statistics, and the ACA Definitions
In federal law, there is no universal standard for ful -time work. In certain targeted situations (such as a tax credit),
federal law might rely upon the employer’s definition to determine ful -time status, or the law may use a ful -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), ful -time or
part-time status is not determined by the number of hours worked but is based instead on the establishment’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 ful -time employment as 40 hours per week. The FLSA does not define ful -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
The ACA includes a precise measure of ful -time employment in 26 U.S.C. §4980H(c)(4), in which it defines a ful -time
employee as an employee who averages at least 30 hours per week during a month. The FTE calculation for purposes
of determining “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.19 The Congressional Research Service searched the
Congressional Record for any statement of intent in the ACA for defining 30 hours or more as ful -time for the
employer penalty calculation and did not find 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 ful -time work. The calculation of FTEs for determining if the employer is eligible for the credit is based
upon 2,080 hours per year (or approximately 40 hours per 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.20 There are three distinct periods in the determination process:

17 IRC §4980H(c)(4)(B).
18 For more information on the Fair Labor Standards Act (FLSA), see CRS Report R42713, The Fair Labor Standards
Act (FLSA): An Overview, by David H. Bradley, Benjamin Collins, and Sarah A. Donovan.
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, at http://www.irs.gov/irb/2014-9_IRB/ar05.html.
Congressional Research Service
7

---

link to page 12 link to page 12 link to page 12 ACA: Employer Shared Responsibility Determinations and Potential Penalties

1. The measurement period is the number of months when an employer calculates
the total number of hours worked by the employee to determine whether the
employee must be considered full-time under the ACA.
2. The administrative period is the amount of time an employer may take to identify
and enroll full-time employees into the health care coverage.
3. The stability period is the amount of time an employer is required to treat all
employees who were determined to be full-time during the measurement period
as full-time under the ACA. An employer may be subject to an ACA penalty
during this stability period if those designated as full-time employees (from the
hours worked during the measurement period) qualify for a health coverage
subsidy during this period (regardless of hours worked during the stability
period).
The IRS notice then allows the employer to choose different methods of determining the
measurement, administrative, and stability periods for three groups of workers:
 ongoing employees;
 new employees who are reasonably expected to work full-time; and
 new employees who work variable hours or seasonal jobs.
Table 1. Time Frame for Determining Full-Time Status

Measurement Period
Administrative Period
Stability Period
Definition
Measure (on average)
Identify and enrol ful -time Penalty may be due
whether employees are ful employees
relative to employees
time
found to be ful time
during measurement
period
Ongoing employees
3 to 12 monthsa
Up to 90 days (may
At least 6 months but
neither reduce nor
cannot be shorter in
lengthen the measurement
duration than
or stability period—can
measurement period
overlap prior stability
period)
New employees hired
Not applicable
Up to 90 days to enrol
Not applicable
as full-time
New variable hour and
3 to 12 monthsb
Up to 90 days
3 to 12 months but cannot
seasonal employees
(measurement period and
be longer than
administrative period
measurement period
cannot exceed 13
months)c
Source: The Congressional Research Service (CRS) interpretation of Internal Revenue Service (IRS) Notice
2014-9, at http://www.irs.gov/irb/2014-9_IRB/ar05.html.
a. For ongoing employees, this is referred to as the standard measurement period.
b. For new employees, this is referred to as the initial measurement period.
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

---

link to page 17 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Ongoing Employees
An ongoing employee is an employee who has been employed for at least one complete standard
measurement period. This is a defined period of between 3 and 12 consecutive months. (See the
transition relief subsection “Measurement Period” for an alternative measurement for 2015 only.)
An employer determines each ongoing employee’s status by looking back at the standard
measurement period. The employer has the flexibility to determine the months when the standard
measurement period starts and ends, provided that the determination is made on a uniform and
consistent basis for all employees in the same category. During a measurement period, the
employer determines if the employee worked on average at least 30 hours per week per month.
If the employer determines that an employee averaged at least 30 hours per week, then the
employer treats the employee as a full-time employee during a subsequent stability period
regardless of the number of hours the employee works during the stability period—so long as he
or she remains an employee.21 An employer can be subject to a penalty only during the stability
period.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
New Employees Reasonably Expected to Work Full-Time
If an employee is reasonably expected at his or her start date to work full-time, an employer must
either offer affordable health coverage within three calendar months of the worker’s start date or
face a potential shared responsibility penalty.
Full-Time Status Determination of Variable Hour Work and
Seasonal Workers
Variable Hour Employees
The regulations provide that a new employee is a variable hour employee if it cannot be
determined that the employee is reasonably expected to be employed on average at least 30 hours

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

---

link to page 8 link to page 8 ACA: Employer Shared Responsibility Determinations and Potential Penalties

per week. In some cases, variable hour employees might not work the necessary 30 hours on
average over a specified time period (up to 12 months) to be considered full-time.
A new employee who is expected to be employed initially at least 30 hours per week may be a
variable hour employee as long as the period of employment at more than 30 hours per week is
reasonably expected to be of limited duration.
Seasonal Workers
In general, under the ACA an employee may be a seasonal employee if the employee is hired into
a position for which the customary annual employment is six months or less and the period of
employment begins each calendar year in approximately the same part of the year (e.g., summer
or winter). The ACA treats seasonal employees’ work hours differently when determining large
employer status (where all hours done by seasonal workers are included in the calculation except
as described in the “Calculating Large Employer Status When the Firm Employs Seasonal
Workers” section) and for calculating an employee’s full-time worker status.
Determining Full-Time Worker Status for Seasonal Workers
When determining the number of full-time employees for purposes of applying the employer
penalty, the final regulations allow employers to employ a look-back measurement period of up to
12 months for determining if seasonal employees are full-time employees. The ability of
employers to use a 12-month measurement period for seasonal employees (who by definition
work usually fewer than six months per year at the job) effectively allows most firms to exclude
seasonal workers as full-time workers even if their hours were used in calculating the employer’s
size.
Full-Time Status Determination of Adjunct Faculty, Employees
with Layover Hours or On-Call Hours, Employees with Difficult to
Identify or Track Hours
The Treasury Department and the IRS continue to consider additional rules for determining hours
of service for purposes of Section 4980H regarding certain categories of employees. The IRS
guidance requires employers to determine full-time status for adjunct faculty, employees with
layover hours (including the airline industry), and employees with on-call hours to use a
“reasonable method” of crediting hours of service that is consistent with Section 4980H of the
IRC.
The guidance states that it would not be reasonable for an employer to not credit an employee
with an hour of service for any on-call hour if
 the employer pays the employee for that hour,
 the employee is required to remain on-call on the employer’s premises, or
 the employee’s activities while remaining on-call are subject to substantial
restrictions that prevent the employee from using the time effectively for the
employee’s own purposes.
In addition, employers of other employees whose hours of service are particularly challenging to
identify or track or for whom the final regulations’ general rules for determining hours of service
present special difficulties (e.g., commissioned sales) are also required to use a “reasonable
method” of crediting hours.
Congressional Research Service
10

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

Exclusions from Definition of Hour of Service: Volunteers, Student
Workers in Certain Types of Employment, and Members of
Religious Orders
Volunteers (Including Some Volunteer Firefighters)
The hours of service performed in certain capacities do not count as an hour of service for
determining either employer size or full-time status. In particular, the hours worked by unpaid
volunteers and certain nominally compensated volunteers (including some volunteer
firefighters)24 are excluded from ACA calculations.
Student Workers
The hours worked by students in positions subsidized through the federal work study program (or
equivalent) are excluded from ACA calculations. However, the final regulations do not expand
this exclusion into a general exception for all student employees. All hours of service for which a
student employee of an educational organization (or of an outside employer) is paid or entitled to
payment in a capacity other than through the federal work study program (or equivalent) are
required to be counted as hours of service for Section 4980H purposes.
Religious Orders
The Treasury Department and the IRS continue to consider additional rules for determining hours
of service for purposes of Section 4980H of the IRC regarding hours worked by members of
religious orders. Until further guidance is issued, a religious order is permitted, for purposes of
determining whether an employee is a full-time employee under Section 4980H, to not count as
an hour of service any work performed by an individual who is subject to a vow of poverty as a
member of that order when the work is in the performance of tasks usually required (and to the
extent usually required) of an active member of the order.
Health Insurance Coverage Requirements for
Employer Plans
To fulfill the shared responsibility requirements, employers must provide health insurance
coverage that is both affordable and adequate to full-time employees and their dependents.

24 The final regulations provide that hours of service do not include hours worked as a “bona fide volunteer.” For this
purpose, “bona fide volunteer” is generally defined in accordance with §457(e)(11)(B)(i) of the IRC, 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

Dependent Coverage: Children Under 26 but Not Spouse
For purposes of the provision, the term dependent means a child under 26 years old of an
employee.25 Absent knowledge to the contrary, applicable large employers may rely on an
employee’s representation about that employee’s children and their ages. The term dependent
does not include the spouse of an employee.
Affordable Coverage
Employer coverage is deemed affordable if the employee’s portion of the self-only premium for
the employer’s lowest-cost health coverage plan does not exceed 9.66% of the employee’s W-2
wages.26
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. The
employer may rely on an employee’s W-2 wages for analyzing the affordability of health coverage
with respect to that employee. This safe harbor, however, does not affect an 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—for both an
individual employee and a family—is based only on the cost of individual-only coverage and
does not take into consideration the often significantly higher cost of a family plan.
Adequate Coverage (Minimum Value)
Under the ACA, a plan is considered to provide adequate coverage (also called minimum value) if
the plan’s actuarial value (i.e., share of the total allowed costs that the plan is expected to cover)
is at least 60%.27
The actuarial value calculation for determining minimum value includes the employer
contributions to health savings accounts and health reimbursement accounts that are part of a high
deductible health plan.

25 For more information about dependent coverage under ACA, see CRS Report R42069, Private Health Insurance
Market Reforms in the Patient Protection and Affordable Care Act (ACA), by Annie L. Mach and 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 9.66% of the employee’s W-2 wages for that year. In IRS Notice 2015-87, the IRS stated its intention
to amend regulations to allow safe harbors to reflect the adjustment consistent with Section 36(b)(3)(A)(ii) of the IRC.
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.
Congressional Research Service
12

---

link to page 18 link to page 18 link to page 19 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Implementation and Transition Relief Through 2015
The ACA, as written, required that the employer shared responsibilities begin to be implemented
in 2014. However, the IRS delayed the employer mandate implementation until 2015.28 There
were up to three forms of transition relief available for employers in 2015.29 First, large employer
status determination was allowed to have a measurement period as short as six consecutive
months. Second, there was an additional year to expand the 2015 health plans to include
dependent coverage. Finally, for employers with fewer than 100 FTEs, the ACA employer penalty
did not apply in 2015. (For details see the following section “Employers with Fewer Than 100
FTEs.”)
In addition, there were similar delays in the employer reporting requirements for 2014. Beginning
in 2015, a large employer must file a return with the IRS reporting certain information about the
health care coverage the employer offered to each full-time employee (or alternatively, that the
employer did not offer health care coverage to that employee).30 Additionally, large employers
must furnish a similar statement to each full-time employee by January 31 of the following
calendar year.31 (See Appendix A for details.)
Measurement Period
In 2015, rather than being required to use the full 12 months of 2014 to measure whether an
employer has 50 FTEs, an employer was allowed to measure any consecutive six-month period
during 2014.
Dependent Coverage
An employer that took steps toward offering dependent health coverage in 2015 was not subject
to the ACA employer penalty solely on account of a failure to offer coverage to dependents for
that plan year. This transition relief applied to health plans offered by an employer if dependent
coverage is not offered, is not adequate, or is offered for some but not all dependents.
Employers could qualify for the dependent coverage transition relief only for those dependents
who were without an offer of coverage from the employer in both the 2013 and 2014 plan years
and if the employer had taken steps in either the 2014 or 2015 plan year (or both) to extend
coverage to dependents not offered coverage in 2013 or 2014.

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, at 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.
Congressional Research Service
13

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

Employers with Fewer Than 100 FTEs
For employers with fewer than 100 FTEs in 2014, the ACA employer penalty did not apply for
any calendar month during the 2015 plan year, including the months during the plan year that fell
in 2015. This transition relief applied only if the workforce size was fewer than 100 FTEs, the
employer had not reduced its workforce size to qualify for relief, and the employer maintained
health care coverage in 2015 that had been offered in 2014.
Limited Workforce Size
The employer must have employed on average at least 50 FTEs but fewer than 100 FTEs on
business days during 2014 in order to qualify for transition relief. The number of full-time
employees (including FTEs) was determined in accordance with the otherwise applicable rules in
the final regulations for determining status as an applicable large employer.
Maintenance of Workforce and Aggregate Hours of Service
The employer could not reduce the size of its workforce or the overall hours of service of its
employees in order to qualify for the transition relief. However, an employer that reduced
workforce size or overall hours of service for bona fide business reasons was still eligible for the
relief.
Maintenance of Previously Offered Health Coverage
The employer could not eliminate or materially reduce the health coverage, if any, it offered as of
February 9, 2014, in order to qualify for transition relief. The maintenance requirement must have
been met for the period beginning on February 9, 2014, and ending on December 31, 2015.
(Employers with non-calendar-year plans must have met the maintenance requirement through
the last day of the 2015 plan year.)
An employer was not treated as eliminating or materially reducing health coverage if any of these
conditions were met:
 It continued to offer each employee who was eligible for coverage an employer
contribution toward the cost of employee-only coverage that either (1) was at
least 95% of the dollar amount of the contribution toward such coverage that the
employer was offering on February 9, 2014, or (2) was at least the same
percentage of the cost of coverage that the employer was offering to contribute
toward coverage on February 9, 2014;
 In the event of a change in benefits under the employee-only coverage offered,
that coverage provided minimum value after the change; and
 It did not alter the terms of its group health plans to narrow or reduce the class or
classes of employees (or the employees’ dependents) to whom coverage under
those plans was offered on February 9, 2014.
Congressional Research Service
14

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

Appendix A. Employer Reporting and Other
Requirements
Under Section 6056 of the IRC, a large employer must file a return with the IRS reporting certain
information about the health care coverage the employer offered to each full-time employee (or
alternatively, that the employer did not offer health care coverage to that employee).32 In addition,
Section 6051(a)(14) of the IRC requires that large employers must furnish a similar statement to
each full-time employee by January 31 of the following calendar year.33
In summary, large employers must provide the following information to their full-time
employees:34
 The existence of an exchange, including services and contact information;
 The employee’s potential eligibility for premium credits and cost-sharing
subsidies if the employer plan’s share of covered health care expenses is less than
60%; and
 The employee’s potential loss of any employer contribution if the employee
purchases a plan through an exchange.
Large employers must provide the following to the IRS:
 A return including the name, address, and employer identification number;
 A certification as to whether the employer offers its full-time employees (and
dependents) the opportunity to enroll in minimum essential coverage under an
eligible employer-sponsored plan;
 The length of any waiting period;
 Months coverage was available;
 Monthly premiums for the lowest-cost option;
 The employer plan’s share of covered health care expenses;
 The number of full-time employees;
 The name, address, and tax identification number of each full-time employee;
and
 Information about the plan for which the employer pays the largest portion of the
costs (and the amount for each enrollment category).
In addition, the employer must also provide each full-time employee the following:
 A written statement showing contact information for the person required to make
the above IRS return and the specific information included in the W-2 return for
that individual.35

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.
Congressional Research Service
15

---

ACA: Employer Shared Responsibility Determinations and Potential Penalties

Once regulations are finalized, if an employer’s workers are covered by the Fair Labor Standards
Act36 (FLSA) and the employer has more than 200 full-time employees, the employer will face
additional requirements.37
 Employers will be required to automatically enroll new full-time employees in
one of their health coverage plans and continue the enrollment of current
employees.
 Employers must provide adequate notice and the opportunity for an employee to
opt out of any automatically enrolled coverage.38

36 See CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview, by David H. Bradley, Benjamin
Collins, and Sarah A. Donovan.
37 29 U.S.C §218b.
38 Employee Benefits Security Administration, EBSA Technical Release No. 2013-02, 2013, http://www.dol.gov/ebsa/
newsroom/tr13-02.html. It remains the Department of Labor’s view that, until final regulations under 29 U.S.C. §218b
are issued and become applicable, employers are not required to comply with 29 U.S.C. §218b.
Congressional Research Service
16

---

link to page 21 link to page 25 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Appendix B. 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 Affairs39 are excluded from calculations to determine if an employer is
large.40
In the 114th Congress, to date, many bills have been introduced related to the employer mandate
(including H.R. 3236, which was signed into law as P.L. 114-41). 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
This bil amends the Internal Revenue Code (IRC) to add
Rep. Rodney Davis
Reliable and
a provision to exempt any employee with coverage under
Innovative Vision a health care program administered by the Department
for the Economy of Defense, including the TRICARE program, or by the
Act
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.)
H.R. 30
Save American
This bil amends the IRC to change the definition of “ful -
Rep. Todd Young
Workers Act of
time employee" for purposes of the employer mandate to
2015
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.
H.R. 210
Student Worker Amends the IRC to exclude students who are employed
Rep. Meadows
Exemption Act
by an institution of higher education (IHE) and carrying a
of 2015
ful -time academic workload at the IHE from being
counted as ful -time employees in calculating the IHE’s
shared responsibility regarding health care coverage
under the ACA.
H.R. 248
American Job
Amends the IRC to repeal provisions added by the ACA
Rep. Boustany
Protection Act
requiring certain employers who have a workforce of 50
or more ful -time employees to provide health insurance
coverage for their employees.

39 These are the health care programs under Chapters 17 or 18 of 38 U.S.C.
40 For information on TRICARE, see, 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.
Congressional Research Service
17

---

link to page 25 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Bill
Title
Summarya
Lead Sponsor
H.R. 440
Helping
Amends the IRC to exclude from the definition of “ful -
Rep. Boustany
Individuals
time employee,” for purposes of the employer mandate
Regain
to provide minimum essential health care coverage, any
Employment Act 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.
H.R. 519
Healthcare Tax
“This bil amends the IRC to repeal the requirements
Rep. Turner
Relief and
added by the ACA that (1) individuals purchase and
Mandate Repeal
maintain minimum essential health care coverage, and (2)
Act
employers who have a workforce of 50 or more ful -time
employees provide health insurance coverage for their
employees.”
H.R. 543
Health Care
“Repeals the health insurance and health coverage
Rep. Blackburn
Choice Act of
expansion requirements of the Patient Protection and
2015
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.”
H.R. 769
Safeguarding
Amends the IRC to exclude any elementary or secondary
Rep. Messer
Classrooms
school, state or local educational agency, and institution
Hurt by Obama
of higher education from the definition of “applicable
Care’s
large employer" for purposes of the employer mandate to
Obligatory
provide health care coverage for employees.
Levies
H.R. 863
Simplifying
Amends the IRC to exempt seasonal employees from the
Rep. Renacci
Technical
definition of “ful -time employee" for purposes of the
Aspects
employer mandate to provide employees with minimum
Regarding
essential health care coverage. Defines "seasonal
Seasonality Act
employee" as an employee who is employed in a position
of 2015
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.
H.R. 1200
American Health “Repeals requirements of the Patient Protection and
Rep. McDermott
Security Act of
Affordable Care Act (PPACA) related to health insurance
2015
coverage, including requirements concerning state health
insurance exchanges.”
H.R. 1387
Fairness for
Amends the IRC to exclude nonimmigrant agricultural
Rep. El mers
Farmers Act of
seasonal workers from the definition of “ful -time
2015
employee" for purposes of the employer mandate to
provide employees with minimum essential health care
coverage.
H.R. 1624
Protecting
This bil amends the ACA and Public Health Service Act
Rep. Guthrie
Affordable
to include employers with 51 to 100 employees as large
Coverage for
employers for purposes of health insurance markets.
Employees Act
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.)
Congressional Research Service
18

---

link to page 25 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Bill
Title
Summarya
Lead Sponsor
H.R. 2658
Protecting
This bil amends the IRC to exclude services rendered by
Rep. Barletta
Volunteer
bona-fide volunteers providing firefighting and prevention
Firefighters and
services, emergency medical services, or ambulance
Emergency
services to a state or local government or a tax-exempt
Responders Act
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.
H.R. 2881
Small Business
Amends the IRC, as amended by the ACA, to redefine
Rep. Messer
Job Protection
“applicable large employer," for purposes of the mandate
Act
requiring employers to provide health insurance for their
employees, to mean an employer with at least 100 ful -
time employees (currently, 50).
H.R. 3080
Tribal
This bil amends the IRC to exclude from the definition of Rep. Noem
Employment and “applicable large employer" for purposes of the employer

Jobs Protection
health care mandate under the ACA any tribal employer.
Act
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 the ACA as an employer
who employs 50 or more ful -time employees who
provide services on average at least 30 hours per week.
H.R. 3762
To provide for
Provisions relating to the premium assistance tax credit,
Rep. Price
reconciliation
reduced cost-sharing, and eligibility determinations for
pursuant to
these subsidies are repealed on December 31, 2017.
section 2002 of
the concurrent
resolution on
the budget for
fiscal year 2016
H.J.Res. 61
Hire More
This joint resolution amends the IRC to exempt any
Rep. Davis
Heroes Act of
employee with coverage under a health care program
2015
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 similar language.)
S. 12
Hire More
This bil amends the IRC to add a provision to exempt
Sen. Blunt
Heroes Act of
any employee with coverage under a health care program
2015
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.)
Congressional Research Service
19

---

link to page 25 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Bill
Title
Summarya
Lead Sponsor
S. 30
Forty Hours is
Amends the IRC, with respect to the employer mandate
Sen. Col ins
Ful Time Act of
to provide health care coverage, to (1) modify the
2015
formula for calculating the number of ful -time employees
employed by an applicable large employer subject to the
mandate; and (2) define a “ful -time employee" as an
employee who is employed on average at least 40 hours
per week (currently, 30 hours).
S. 38
Helping
Amends the IRC to exclude from the definition of “ful -
Sen. Thune
Individuals
time employee," for purposes of the employer mandate
Regain
to provide minimum essential health care coverage, any
Employment Act 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.
S. 157
No Obamacare
“This bil repeals provisions of the Patient Protection and
Sen. Cassidy
Mandate Act
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.”
S. 305
American Job
Repeals provisions of the IRC, as added by the ACA, that
Sen. Hatch
Protection Act
(1) impose fines on large employers (employers with 50
or more ful -time employees) who fail to offer their ful -
time employees the opportunity to enrol 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
ful -time employees. Applies the IRC as if those
provisions had never been enacted.
S. 420
Protecting
This bil amends the IRC to exclude services rendered by
Sen. Toomey
Volunteer
bona-fide volunteers providing firefighting and prevention
Firefighters and
services, emergency medical services, or ambulance
Emergency
services to a state or local government or a tax-exempt
Responders Act
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.
S. 432
Small Business
Amends the IRC, as amended by the ACA, to (1) exempt
Sen. Enzi
Fairness in
a small business concern, as defined by the Small Business
Health Care Act
Act, from the ACA employer mandate to provide
employees with minimum essential health care coverage;
and (2) redefine “ful -time employee," for purposes of
such mandate, as an employee who is employed on
average at least 40 (currently, 30) hours a week.
S. 470
Safeguarding
Amends the IRC to exclude any elementary or secondary
Sen. Thune
Classrooms
school, state or local educational agency, and institution
Hurt by
of higher education from the definition of “applicable
ObamaCare’s
large employer" for purposes of the employer mandate to
Obligatory
provide health care coverage for employees.
Levies
Congressional Research Service
20

---

link to page 25 ACA: Employer Shared Responsibility Determinations and Potential Penalties

Bill
Title
Summarya
Lead Sponsor
S. 647
Health Care
Repeals the health insurance and health coverage
Sen. Cruz
Choice Act of
expansion requirements of the ACA and related
2015
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.
S. 1415
Small Business
Amends the IRC to modify the definition of “applicable
Sen. Heitkamp
Stability Act
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) ful -
time employees during the preceding calendar year.
S. 1771
Tribal
This bil amends the IRC to exclude from the definition of Sen. Daines
Employment and “applicable large employer" for purposes of the employer
Jobs Protection
health care mandate under the ACA (1) any Indian tribal
Act
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 the ACA as an employer
who employs 50 or more ful -time employees who
provide services on average at least 30 hours per week.
S. 1809
STARS Act
Amends the IRC to exempt seasonal employees from the
Sen. Ayotte
definition of "ful -time employee" for purposes of the
employer mandate under ACA 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.
Source: Congressional Research Service.
a. The summaries are taken from Congress.gov, and they only include information about the provisions in the
bil related to the employer mandate.


Author Contact Information

Julie M. Whittaker

Specialist in Income Security
jwhittaker@crs.loc.gov, 7-2587

Congressional Research Service
21

---