The IRS released proposed regulations last week that amplify and modify earlier guidance issued on the 2010 health care reform law’s employer penalty provision.
Highlights of the proposed regulations include:
- For purposes of determining whether an employer has the threshold 50 full-time employees, an employer can use any consecutive 6-month period in 2013, instead of the whole year, to calculate the average number of employees. (If an employer does not have an average of at least 50 full-time or full-time equivalent employees in 2013, the employer penalty provision won’t apply at all in 2014.)
- Whether an employee works full-time (i.e., at least 30 hours per week) will be determined by counting hours for which he’s paid or entitled to pay (including paid leave) or, for employees not paid on an hourly basis, using equivalency rules (i.e., credit 8 hours if one hour credited for a day; credit 40 hours if one hour credited for a week). Special hours-counting rules will apply for educational institutions, employees paid on a commission basis, and the like.
- All common-law employees of all entities that are part of the same controlled group must be aggregated to determine whether the 50-employee threshold is met.
- To avoid the penalties, an employer must offer coverage to at least 95% of its full-time employees and their dependent children up to age 26. For this purpose, full-time may be determined using the look-back/stability period safe harbor the IRS described in earlier guidance.
- Spouses are not dependents for purpose of the penalty that’s triggered for failure to offer coverage to full-time employees and their dependents. Also, for 2014, an employer won’t be penalized solely for the failure to provide employees’ children coverage, as long as the employer takes steps to put that coverage in place during 2014.
- To deal with schemes designed to avoid the penalties by taking advantage of ambiguities in the penalty rules, IRS intends to include an anti-abuse provision.
- Comments to the proposed regulations will be accepted by the IRS until March 18th.
For more details, see our website article describing the proposed regulations. We also will provide a webinar covering the employer penalty provisions on our website later this month.