Free Rider Penalty Hot Topics & FAQs

• New Guidance on Who Qualifies as a Full-Time Employee for the Free Rider Penalty
  

  Notice 2012-58 describes a safe harbor employers may use to determine whether an existing or newly hired employee is considered a full-time employee for purposes of the Free Rider Penalty.  In general, full-time status is determined for each month, and an employee who averages 30+ hours of service per week is considered a full-time employee.  Employers may use an optional lookback period (of between 3 and 12 calendar months) to determine whether an employee averaged 30+ hours of service per week. If an employee was considered full-time during this “measurement period”, the employee must be treated as a full-time employee for benefits purposes for a subsequent “stability period” regardless of the employee’s number of hours worked during the stability period, so long as the individual remains an employee.  If the employee was considered part-time during the measurement period, the employee may be treated as part-time for benefits purposes throughout the stability period.  The stability period must be at least as long as the measurement period, and not shorter than six months.
  These rules may be used for seasonal employees and for new employees who will work variable hours if, based on the facts and circumstances at the date of hire, it cannot be determined that the employee is reasonably expected to work an average of at least 30 hours per week.  The rules may also be used for ongoing employees who have worked for at least one complete measurement period. 

  The employer has the flexibility to determine the months in which the measurement period starts and ends, which must be applied consistently for all employees in the same category (e.g., collectively bargained employees, hourly employees, or employees who work for different entities or at different locations).  An employer may also utilize an administrative period of up to 90 days following the measurement period, but together the measurement and administrative periods may not extend longer than 13 months from the employee’s start date, plus the time remaining until the first day of the next calendar month (if the employee’s start date is not the first day of a calendar month).  Notice 2012-58 includes a number of examples illustrating the application of these rules and may be relied upon at least through 2014.

• Safe Harbor Definition of Income For Free Rider Penalty

  The language in the Health Care Reform law establishing the Free Rider Penalty provides that coverage is affordable if the employee does not have to pay more than 9.5% of household income in order to receive employee-only coverage. The reference to “household income” raised concern for employers who do not have access to information about the employee’s household income. To address this concern, new IRS proposed regulations provide three safe harbors. The safe harbors allow employers to determine “household income” in one of three ways: (1) the employees’ current W-2 wages from the employer; (2) the employee’s current monthly rate of pay, which is the monthly salary for a salaried employee and the hourly rate of pay X 130 for an hourly employee; or (3) the federal poverty level for a single individual. An employer may chose to use one or more of these safe harbors for all or any reasonable category of employees as long as they are used on a uniform and consistent basis for all employees in a category.  Coverage will be considered affordable if the coverage is otherwise adequate and the employee portion of the employee-only premium for the employer’s lowest cost coverage option does not exceed 9.5% of the safe harbor “household income” substitute selected by the employer. For purposes of the premium tax credit, an employee will be considered to have access to affordable employer-sponsored coverage (and therefore would not qualify for a premium tax credit) if the employee has to pay less than 9.5% of their household income for employee-only coverage.

• Will grandfathered plans be subject to the Free Rider Penalty?

  Answer: Employers, not plans themselves, are subject to the Free Rider Penalty. There is no exemption for sponsors of grandfathered plans. Thus, if the grandfathered coverage is inadequate or unaffordable, the employer may owe a penalty.

• Does a high deductible health plan provide adequate coverage?

  The plan sponsor would need to perform the calculation to determine whether the plan's actuarial equivalence is at least 60%. However, as a rule of thumb, high deductible health plan coverage offered in connection with a Health Savings Account often has an actuarial value of approximately 65%.

• How much is 400% of the Federal Poverty Level?

  Click here to link to the latest Federal Poverty Levels as established by the federal government. The following are examples of 400% of the Federal Poverty Level in 2011:

  • Individual: $ 44,680
  • Family of 2: $ 60,520
  • Family of 4: $ 92,200
  • Family of 6: $ 123,880

• Additional Resources

  • Employer responsibilities and choices

    What do you do with your health plan now?

  • AFA Affordability Calculator

    To determine which employees may have unaffordable coverage today

  • Premium Tax Credit

    Additional information about the availability of a premium tax credit

  • Federal Poverty Level

    Link to the latest levels as established by the federal government

  • Free Rider Penalty Flowchart
    See if your plan is likely to trigger a Free Rider Penalty

  • IRS Notice 2012-58
    Guidance to determine whether employees working variable hours are considered full-time
  • Minimum Value Calculator
    Calculate whether an employer's coverage is "adequate"