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Greetings!
Like it or not, and politics aside, Obamacare is here and ALL employers, regardless of size, will be impacted with significant time-consuming implementation tasks; most immediately with the obligation to provide Notice By 10/1/13 of the availability of Health Insurance Marketplace Exchanges, possible eligibility for premium tax credits, and information regarding health coverage offered by the employer, if any.
Many decisions must be made; exploring options and business consequences of those decisions.
RGL Consultants can serve as a resource to assist you in that exploration process as well as implementation of initiatives.
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 *IMPORTANT OBAMACARE UP-DATE*
The Department of Labor, on May 8th, released guidance regarding required employer notification of coverage options through the health insurance exchange (also known as the health insurance marketplace). The guidance includes model notices for employers that provide a health plan and one for those that don't, along with a new deadline for distributing the notice to current and new employees (these notices will need to be "tailored").
With respect to employees who are current employees before Oct. 1, 2013, employers are required to provide the notice not later than Oct. 1, 2013. Employers are required to provide the notice to each new employee at the time of hiring beginning Oct. 1, 2013. The Department will consider a notice to be provided at the time of hiring if the notice is provided within 14 days of an employee's start date.
The notice is required to be provided automatically. It can be provided in writing either by first-class mail, or electronically if the department's electronic disclosure safe harbor requirements are met.
The guidance also provides an updated model election notice for group health plans for purposes of the continuation coverage provisions under COBRA, which includes additional information regarding health coverage alternatives offered through the exchange.
Please use the links below for more information and sample model notices.
Notice to Employees of Coverage Options
PAY OR PLAY
There is no "shared responsibility" penalty in 2014 for an employer with fewer than 50 F/T employees (inclusive of FTEs) that does not offer "affordable" health coverage. However, the Obamacare rules define F/T employees as those working 30 hours per week or more and specific rules have been established for calculating FTE and for seasonal and variable hour workers. This required calculation is based upon prior year employment (it would be most prudent to document and retain the details of this calculation for audit purposes). Do you have a mechanism for documenting and tracking these hours?
PLANNING OPTIONS
- Adopt a "49/29" strategy - Remain under 50 employees and work under 30 hours
- Drop Health Insurance Coverage and pay the penalty (remember, the penalty would be a non-deductible expense)
Is this a sound long-term business decision? What would be the impact on employee morale/employee relations? What would be
the recruitment/retention implications?
- Establish a "low cost" plan open to all F/T employees
- Cost Sharing shift to ensure "affordability" standard is achieved
- Consider self-funding to better control future healthcare costs
- Implement aggressive wellness program initiatives to mitigate future claims
Prepare to deal with significant confusion from staff members and the need for enhanced employee communications. Also, be prepared for additional administrative burdens such as IRS reporting; particularly at year-end 2014.
If an employee receives a premium tax credit and then at the end of 2014 when the IRS "trues up" against the employee's tax return it is determined that he/she was not eligible for that tax credit, the employee must pay it back. That event could involve the employer in much the same way as an unemployment hearing by requiring additional reporting or certifications to the IRS.
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FINALLY, CLOSURE ON NLRB POSTING RULE
The D.C. Circuit vacated the controversial NLRB rule requiring employers to notify employees of their rights under the NLRA, upholding a challenge brought by several employer groups. The appeals court concluded in its ruling on May 7, 2013, that the rule violated employers' free speech rights as protected by Sec. 8(c) of the Act.
The NLRB rule declared that it is an unfair labor practice for an employer to fail to post the notice-that is, it "may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Sec. 7." Two additional enforcement devices contained in the rule included that the Board could suspend the running of the six-month limitations period for filing any unfair labor practice charge, and the Board may consider an employer's "knowing and willful refusal to post the notice as evidence of unlawful motive."
The D.C. Circuit focused its analysis on Sec. 8(c), the NLRA's free speech provision. The appeals court observed that although Sec. 8(c) precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both. Under the rule, an employer's failure to post the required notice constitutes an unfair labor practice. Moreover, the Board may consider an employer's "knowing and willful" noncompliance to be evidence of antiunion animus in cases in which unlawful motive is an element of an unfair labor practice.
The appeals court posed the question: How can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, Sec. 8(c) necessarily protects-as against the Board-the right of employers (and unions) not to speak. The Board rule violated Sec. 8(c) because it makes an employer's failure to post the Board's notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving unlawfully motivated firings or refusals to hire. Consequently, the Board's posting rule was vacated.
Finally!
(To review the previously required NLRB text, go to our website at www.rglconsultants.com and click on the "Postings" tab).
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