1. 4980H(a) liability - Applies if an employer fails to offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage (MEC), and any full-time employee is certified as having received a subsidy (i.e. a premium tax credit or cost sharing reduction) when purchasing individual health insurance through a public Exchange.  In this case the employer may be liable for a penalty of $2000 per year times the total number of full-time employees (not counting the first 30). 
2. 4980H(b) liability - Applies if the employer does offer its full-time employees (and their dependents) MEC, but the plan is unaffordable or does not provide minimum value, and at least one full-time employee is certified as having received a subsidy when purchasing individual health insurance through a public Exchange.  In this case the employer may be liable for a penalty of $3000 per year times the number of full-time employees who are certified to receive, and purchase, subsidized individual health insurance through a public Exchange. 

An applicable large employer is an employer that employed an average of at least 50 full-time employees during the preceding calendar year.  See below for additional details on how related organizations and corporations under common control will be treated for the purpose of this rule.

Transition Rule
In an important and welcome development, the IRS guidance provides transition relief for non-calendar year plans.  Employers who sponsor non-calendar year plans will not be liable for any 4980(H) liability until the first plan year beginning after January 1, 2014.  

To be eligible for this transition relief, an employer must have maintained the non-calendar year plan as of December 27, 2012 (the day prior to the initial release of the rule).  This provision eliminates the opportunity for an employer to change plan years in an attempt to delay being subject to 4980(H) liability.

Offering Coverage to all Full-time Employees - The 95% Rule
As stated above, an employer faces potential penalties under 4980H(a) if it fails to offer minimum essential coverage to all full-time employees.  The IRS has previously commented that the penalty should not apply in the case of an employer that intends to offer coverage to all its full-time employees, but fails to offer coverage to a few full-time employees.  IRS Notice 2011-36 initially addressed this issue by indicating that the IRS was contemplating a rule stating that an employer offering coverage to "substantially all" of its full-time employees would not be subject to a 4980H(a) assessable payment. In the new guidance the IRS allows a margin of error regarding this requirement, and has introduced a "95%" standard.  

An applicable large employer  will be treated as offering coverage to its full-time employees if it offers coverage to all but 5% (or if greater, five) of its full-time employees.  This rule alleviates employer fears that a small administrative mistake could trigger significant employer penalties.    

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