A group of employers is urging the Obama administration to extend through 2015 its definition of a full-time employee under the Patient Protection and Affordable Care Act despite the delay in the employer mandate.
The Employers for Flexibility in Healthcare Coalition this week sent a letter to three Cabinet secretaries on that question as well as raising other questions about guidelines issued by the government to help employers prepare to integrate the law into their benefits planning.
Those questions included the tax and reporting implications of the delay in the employer mandate. The administration announced last month that the penalty provisions of the mandate would be postponed until 2015, though not the heart of the mandate.
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E-FLEX wants the definition of a full-time employee under the law to remain as is.
Its letter, in part, stated: "Notice 2012-58, which outlined guidance on determining full-time employees, provided much-needed flexibility for employers with variable hour workforces, including the look-back measurement/stability period and affordability safe harbors. The Notice provided employers certainty that they could rely on the guidance through at least the end of 2014. Similarly, proposed rules on IRC §4980H noted that employers may rely on the proposed regulations for guidance "pending the issuance of final regulations or other applicable guidance.
"Given the voluntary compliance approach the administration has decided to take for 2014 with respect to reporting requirements and employer penalties, we urge the administration to consider extending through 2015 the certainty with which employers can rely on guidance in Notice 2012-58 and the proposed rules in IRC §4980H."
The guidelines provided under the act say that any employee of a large company — defined as one with 50 or more employees — who works an "average" of 30 hours per week must receive coverage.
In response, some employers quickly began sharing ideas designed to skirt the requirement. Among them: a fast-food company that started "sharing" its workers with franchisees of the same fast-food chain. While the employees in theory worked fewer than 30 hours a week for the company-owned store and the franchise operation, in reality, the employees were working well over 40 hours a week.
That was not a typical response. But decisions to shift more 30-plus hours workers to less than 30 have been common. Now, with the penalties put off until 2015 but the guidelines in force only through 2014, E-FLEX is raising the question about whether the guidelines would remain unchanged, or if there might be revisions coming.
Treasury Secretary Jack Lew, Labor Secretary Thomas Perez and Health and Human Services Secretary Kathleen Sebelius received copies of the letter, as well as congressional leaders.
As of Wednesday, the group had not received a response from any of those contacted, said group member Anne Phelps of Ernst & Young.
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Dan Cook
Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.
