FAQ's

If your business is part of what’s called a “control group,” you may be covered by the ACA’s employer mandate even though you may employ fewer than 50 FTE employees.

A control group is two or more businesses with the same Federal Employer Identification Number (FEIN, also known as a corporate tax i.d.) A control group is at least 80-percent owned by the same parent corporation or by a group of five or fewer individuals, estates and/or trusts. And, if the group of five or fewer individuals is related, additional IRS rules apply.

Under the ACA, a control group is treated as one company – and if the company has more than 50 FTE employees, all businesses in the control group must offer “minimum essential coverage” health insurance or potentially face an employer mandate penalty.

For example, if you run six separate restaurant concepts each employing fewer than 50 FTE employees, but you are the 80-percent (minimum) owner of them all, the businesses constitute a control group comprised of the total number of employees. In situations that need to identify whether an operation represents a control group or not, the IRS will apply its longstanding common control group standard, which can be found at Internal Revenue Code § 414(b), (c), (m) and (o). Your tax attorney can help you navigate the code and assess if this standard applies to your situation.

If you qualify as a large employer under the Affordable Care Act and wish to avoid the employer mandate penalties, you need to offer health insurance to salaried employees and any employee who works more than 130 hours in a calendar month. For hourly employees who work variable schedules (some months more, and some months less than 130 hours), there are multiple calculation methods under the ACA to determine if they are eligible.

If you are not considered a large employer under the ACA and choose to offer employer health insurance, then you need to offer coverage to anyone on salary and those working more than the minimum hours required by your state. State requirements typically range from 30 to 40 hours per week.

An operating business can offer a health insurance program to its employees at any time during the year. There is no legally mandated period when an employer health insurance program can begin.

If you are opening a new restaurant, the insurance usually becomes effective 30 days after the business opens, but it depends on the requirements of the insurance company. The typical 30-day period is to ensure the restaurant is not a “shell” company.

Insurers will require that a certain percentage of your eligible employees participate in the health insurance plan you offer. The minimum participation rate can vary from 50 percent to 75 percent of eligible employees, meaning half to three quarters of employees who are offered the benefit need to sign up for it.

If employees have a valid waiver, however, they are not counted in the pool of eligible employees. Valid waivers include being covered under a spouse’s plan, under a parents’ plan for those under the age of 26, and through Medicare, to name a few.

Unfortunately, restaurants often have a hard time meeting an insurance company’s minimum participation requirement. Hourly employees, especially those who are working the minimum number of hours to be eligible, often decline to participate.

When restaurateurs face challenges getting enough employees to participate in their health insurance benefit (enough to meet the minimum participation rate set by the insurance company), they often use a so-called “carve-out” to offer the benefit to a smaller subgroup of employees. For example, if an employer offers health insurance to salaried employees, rather than salaried and hourly, they are more likely to be able to meet the participation-rate requirements. Carve-outs also work when an employer wants to offer different insurance benefits to different grades of employees. Common examples of carve-outs are “management only,” “salary only,” and “union only.”

The insurance company has the right to decide whether it allows carve-outs and it may also put limitations on which kinds of carve-outs it accepts.

Restaurants considering a carve-out should work closely with an insurance broker to ensure they’re following all the employment laws associated with a valid carve-out.

The ACA offers some flexibility, to ensure large employers won’t face penalties if they fail to offer health benefits to full-time seasonal employees. A seasonal employee, according to the IRS, is a person hired into a position for which (1) customary annual employment is six months or less and (2) the period of employment begins each calendar year in about the same part of the year, such as summer or winter.

A deductible is the amount an individual or family must pay before the insurance company begins to pay any coinsurance. For example, in a plan with a $3,000 individual deductible and 80/20 coinsurance, the individual pays the first $3,000 in claims, after which the insurance company starts paying 80 percent of any future claims made in that year. The out-of-pocket maximum is the maximum amount the individual must pay for all health costs combined in that year, including the deductible, copays, the remaining 20 percent of the coinsurance, and similar charges.

If you’re an ACA-covered employer with 50 or more full-time-equivalent employees you can face penalties in one of two scenarios:

• Penalty A: You failed to offer health coverage to 95 percent of your full-time employees, or
• Penalty B: The coverage you offered wasn’t affordable (according to IRS definitions) or it didn’t meet a minimum-value standard.

Penalty calculations are complex, but if you’re a large employer, you should note that you could face ACA-related penalties that run into thousands of dollars per full-time employee.

Whether Penalty A or Penalty B, you face a penalty only if one or more of your full-time employees gets a federal tax credit, called a premium tax credit (PTC), to buy a health plan through a government-run marketplace, such as HealthCare.gov or one of 17 state-based marketplaces. Employees qualify for a tax credit if their income falls below a certain level and they can’t get affordable health coverage through work or aren’t in a government program like Medicaid or Medicare.

If a full-time employee of a large employer receives a PTC, the IRS will assume the large employer isn’t making an offer of qualifying coverage. (Note: A full-time employee who turns down affordable coverage through their large employer is not eligible for a PTC.)

Thousands of employers are now receiving these letters – and the sticker shock can be big! The 226-J letter typically starts off with a penalty estimate, and then lists each full-time employee, by month, who received a premium tax credit (PTC) to buy an individual plan on a government exchange. Employers who want to avoid penalties have the burden of proving they made offers of affordable, minimum-value coverage to qualifying employees. Employers who have records to prove they offered a qualifying plan, but the full-time employee turned it down, are off the hook.

If you receive a 226-J letter, a few words of advice:

1. Don’t ignore it. If an employer fails to respond within 30 days, the IRS will assume they agree with the penalty assessment and move forward to collect it.
2. Talk to your team. Consult with your broker or benefits provider, tax adviser and legal experts to make sure you understand the issues that triggered the letter and know your options for disputing the proposed assessment.
3. Correct what you can. The problem that triggered your letter may be a data-entry error or data-transmission issue in the reports filed with the IRS, or a simple mistake. These can often be fixed easily.