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When Is An Employer’s First Year As An ALE?

By Catrina Reyes, J.D., M.P.A. Policy Analyst and Compliance Manager, Apr 7, 2015, 2 Minute Read

The final large employer mandate regulations provide for a transition rule for an employer’s first year as an applicable large employer (ALE). An ALE is an employer that employed an average of at least 50 full-time (FT) and full-time equivalent (FTE) employees in the prior year. During an employer’s first year as an ALE, the ALE will not be subject to a penalty from January through March for failure to offer coverage to employees who were not offered coverage at any point during the prior calendar year provided the ALE offers affordable and minimum value coverage to these employees on or before April 1.

This transition rule allows employers, particularly employers that have close to 50* FT employees (including FTEs), but are not certain they will be ALEs, time to put coverage in place once they have determined they are ALEs. Since the measurement period to determine ALE status ends December 31**, employers will have no time to offer coverage to its employees by January 1. Starting coverage in the middle of the month to give employers time to put coverage in place is not an option, because an employer that fails to offer coverage to a FT employee for any day in a calendar month is treated as not offering coverage for the entire calendar month.

There has been some confusion among employers that want to take advantage of this transition rule in 2015 as to when is their first year as an ALE. In 2013, the IRS delayed the reporting requirements making it impractical to determine which employers owed a penalty. As such, no penalties were assessed in 2014. However, this had no effect on the effective date of the law, it was simply enforcement of the reporting requirements and penalties that were delayed. This means employers still needed to determine if they were an ALE in 2014. Therefore, 2015 is not the first year an employer is an ALE, if that employer was an ALE in 2014 (based on 2013 data).

It can be argued that the first year as an ALE for every employer with 100 FT employees (including FTEs) is 2015. Since no penalties were assessed in 2014, it can be claimed that employers were not required to comply with the provisions of the large employer mandate in 2014, including determination of ALE status. However, if this were the case, any employer with 100 FT employees (including FTEs) in 2015 could avoid penalties from January through March for failure to offer coverage to employees who were not offered coverage at any point during the prior calendar year. It is unlikely that this was the IRS’ intention. Moreover, the instructions for the reporting forms for ALEs (IRS Forms 1094-C and 1095-C) are clear that 2015 is not the first year an employer is an ALE, if that employer was an ALE in 2014 (based on 2013 data).

*Only employers with 100 or more FT employees (including FTEs) are subject to the mandate in 2015. Employers with 50-99 FT employees (including FTEs) will not be subject to the mandate in 2015 if these employers meet certain conditions and certify to the IRS that they meet these conditions. These ALEs will be subject to the mandate in 2016.

* *To determine ALE status for 2015, an employer may use a reference period of at least six consecutive calendar months (as chosen by the employer) during 2014 (rather than the entire 2014).