An employer who employed an average of at least 50 full-time employees per month during the prior calendar year is an applicable large employer (ALE) for Affordable Care Act (ACA) purposes. ALE status must be determined each year, and ALEs are subject to the ACA employer shared responsibility and information reporting provisions for offers of minimum essential coverage to employees. There are many items to consider in determining whether an employer is an ALE. The first question an employer must consider is how are full-time employees defined under the ACA? Full-time employees include an employee who works 30 hours or more per week or employees working 130 or more hours in a calendar month.
Employers must also include full-time equivalent employees in the count of full-time employees. Full-time equivalent employees are not full-time employees; instead, the number of full-time equivalent employees is determined by combining the number of hours of service for all part-time and variable hours employees working 120 hours or less during the month and dividing that total by 120. This number only counts towards the total number of full-time employees for that month for determining if the employer is an ALE – it will not change an employee from part-time to full-time status for purposes of whether an offer of coverage must be made.
Employers who exceed 50 full-time employees (including full-time equivalent employees) are not considered ALEs where the employer employs seasonal workers if certain conditions apply. First, the employer’s total workforce must only exceed 50 full-time employees for 120 or fewer days during the year. Second, the employees who exceed 50 full-time employees during those 120 or fewer days must be seasonal workers. Seasonal workers are generally defined as employees who work on a temporary or seasonal basis, such as retail employees who work during the holiday season or summer staff at a swimming pool.
Companies with common ownership may be part of a controlled group which requires employers to aggregate the total number of employees across the group in order to determine whether included companies are ALEs. The employees of every company within a controlled group determine whether any company within the controlled group is an ALE. Also, for a calendar year in which an employer is an ALE, the regulations applicable to ALEs apply to each company within the controlled group regardless of whether the individual company has 50 or more full-time employees or full-time equivalent employees.
The final item to consider is the definition of a common law employee. Common law employees are generally defined as workers whose work schedule is controlled by the employer (rather than the worker or another employer). Employers should closely review the job duties and expectations for workers from temporary staffing agencies and who are classified as independent contractors because their employment status can be easily confused, and they may be considered common law employees who count towards an employer’s full-time employee or full-time equivalent employee number. Failure to correctly account for these employees can result in a false conclusion as to whether an employer is an ALE.
Compliance is a critical component of any successful benefits plan. Contact our Compliance Team by email or at 888-279-5150 for help with ACA and ERISA requirements that may impact your business.
This article gives a basic overview of recent regulation as in effect on the date this notice was created. Please be aware that the determination of the requirements and the application of these rules to each employee welfare plan may differ for a number of variables. Nothing in this notice should be construed as legal advice.