After employer mandate delay, is bump to 40 hours next?

A week ago today, the IRS issued guidance (Notice 2013-45) on the one-year delay of the Affordable Care Act’s employer mandate, announced in a U.S. government blog earlier in the month. First and foremost, the guidance made the delay official (“A blog entry on a Treasury Department website is not exactly the type of reliance that one would ordinarily want,” as one expert put it), but more, it defines with its presence, legal sources tell EBN, all the negative space that the delay doesn’t change, and, in many cases, leaves unclear.

“It made it very clear that the transition relief for the extension only applies for purposes on these reporting forms and has no effect on anything else,” says Paul Hamburger with Proskauer. “At this point it is only the application of the fees for the mandate, and the reporting of the information on those forms.”

Employees can still ditch employer-sponsored health care for offerings at public exchanges, and those exchanges can still reach out to employers for batches of information; “sampling, they call it,” Hamburger says. But the delay is a huge deal for employers still setting up their verification and reporting methods. Hamburger says it’s “a vast oversimplification and mischaracterization of the issue” to imagine that, with the vast majority of eligible employees already covered, this is largely a cosmetic change.

“The fact that coverage is provided is a fundamentally different question than whether I have to prove it to the government,” he says. “The whole mechanism that has been structured of forcing employers to prove it to the government is the burden that has been imposed on them. Because it is not enough to say, ‘OK, I provide coverage to my employees.’ Now I have to actually identify that person-by-person because some of them may go to an exchange.”

And naturally, any delay offers the opportunity for further change to ACA. While many proposed changes, like a Republican push to nix the individual mandate , have little chance of becoming reality, others, like a shift in the matrices for determining full-time workers, could well find footing in the next 12 months.

“The other thing to bear in mind … is proposed legislation to raise the limit from 30 hours to 40 hours,” Hamburger says. “And now that there’s going to be another year, we may see more traction to raise the definition of ‘full-time’ from 30 to 40…. It’s a more comforting or easier-to-administer threshold for a lot of employers.”

Amy Gordon with McDermott Will & Emery agrees, saying when a bipartisan bill floated that idea recently, it got a very enthusiastic response.

“I cannot tell you how many of our clients were excited at the possibility of that being the case,” Gordon says. “That has really been a change to many of their practices, because typically 40 hours was considered full-time. … I don’t believe I had anyone, before the Affordable Care Act, who thought someone working 30 or more hours was full-time.”

Meanwhile, Gordon says, “nothing” has been issued to address the gap in funding that holding off on employer fees for a year will produce. The Congressional Budget Office had estimated $10 billion from 2013 alone out of employer penalties.

“Most of the things I’ve read have posed that same question – where now do we get the money that was supposed to have been generated based on those fines, and how is that going to affect those remaining provisions?”