Push for 40-hour health care threshold will take work

In mid-July, 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, but what's more, it defines what 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."

And naturally, any delay offers the opportunity for further change to the 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 who is a full-time worker, could well find footing in the next 12 months. Under the ACA, employees working more than 30 hours per week are considered full time.

"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," says Hamburger. "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 hours was full time."

Many are expecting Congress and trade groups to try to use that extra year to chip away at the health care reform act, or at least alter it. But with a Democratic-controlled Senate and White House, changes to the Obama administration's signature piece of domestic legislation face an uphill battle and would need bipartisan support.

Alden Bianchi, practice group leader of Mintz Levin's employee benefits and executive compensation practice, says it's a "question for the lobbyists and the professional politicians" as to whether such a push would succeed, and the House of Representatives is a difficult chamber in which to place bets.

A difficult unknown in the equation is how many millions - or tens of millions - of Americans would be affected by a bump up to 40 hours a week. Employers have struggled mightily with how to calculate how many and which of their variable-hour employees would be eligible for health insurance with a bar of 30 hours; many businesses still haven't figured it out.


Viable alternative

Those workers who don't qualify "have the option at the exchanges" Bianchi says, and that means the exchanges themselves might prove a bellwether for the 30-to-40 shift.

"I think if the rollout of the exchanges goes relatively smoothly ... that takes a little pressure off of employer-sponsored health care," he says. "Therefore, Congress would be more willing to up the full-time definition from 30 to 40 because those people who are below 40 would then have a viable alternative."

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