IRS' Final Employer Shared Responsibility Rules: How Do You Handle Breaks in Service?
General Rules for Breaks in Service (Applicable to Both the Look-Back Method and the Monthly Method of Determining Full-Time Employees)
For purposes of these rules, a “break in service” is a period during which an employee is not credited with any hours of service. This may occur as a result of an unpaid leave of absence, or when an employee terminates employment and is later rehired.
New Hire Treatment. If an employee experiences a break in service of at least 13 consecutive weeks (or at least 26 weeks for educational organizations), then the employer may treat the employee as a new hire when he resumes services. Therefore, if the employer is using the look-back method to determine full-time employees and the employee is considered a seasonal, variable or part-time employee upon resumption of services, then (a) the employer need not treat the employee as a full-time employee during the stability period when he returns (if he would otherwise have qualified as a full-time employee for that stability period) and (b) the employer may subject the employee to a new initial measurement period, if applicable. For employers using either the monthly method or look-back method, if the employee is considered a full-time employee when he resumes services, then the employer need not offer coverage until the employee completes three full months of service as a full-time employee (or if earlier, after 90 calendar days). Please see our related newsletter entitled “Who is a “Full-Time” Employee?” for more information.
Ongoing Employee Treatment. If an employee experiences a break in service of less than 13 weeks (or less than 26 weeks for educational organizations), then the employee is treated as an ongoing employee. This means that:
- For employers using the look-back method to determine full-time employees, if the resumption of services occurs during a stability period, then the employee retains his or her characterization as either a full-time or part-time employee (as determined before the break) for the remainder of that stability period. If the employee had previously enrolled in coverage during the stability period (i.e., prior to the start of the break in service) and such coverage ceased during the break, then he or she must be offered coverage upon resuming services, or as soon as administratively practicable thereafter. Offering coverage that will be effective by the first day of the calendar month following rehire is deemed to be as soon as administratively practicable. If the employee had previously declined coverage for that stability period, then the employer does not have to re-offer coverage for the remainder of the stability period.
- For employers using the look-back method to determine full-time employees, the break in service period during which no hours are credited is generally permitted to be counted as part of the measurement period. In other words, during the break in service period (which occurs during a measurement period), the employee is credited with zero hours of service. This will have the effect of causing an employee who experiences such a break in service to have a lower number of average hours of service during that measurement period, potentially resulting in such individual failing to qualify as a full-time employee for the next stability period. However, a different rule applies if the reason for the break in service is a “special unpaid leave”, as discussed below.
- For employers using the monthly method to determine full-time employees, an individual who resumes services as a full-time employee must be offered compliant coverage upon the rehire date, or as soon as administratively practicable. Offering coverage by the first day of the calendar month following rehire is deemed to be as soon as administratively practicable. The 3-month waiting period applicable to newly hired full-time employees does not apply in this case.
For those employers using the look-back method for determining full-time employees, please keep in mind that an employee that averaged 30 or more hours of service during the look-back measurement period must be treated as a full-time employee for the entirety of the following stability period, regardless of the employee’s hours of service during the stability period. As a result, employers that normally cease to cover an employee during a leave of absence may need to reconsider that approach. Ceasing to offer coverage to an employee who is otherwise considered a full-time employee during the stability period may result in penalties for each month that the coverage is not offered.
Optional Rule of Parity (Available for Look-Back Method or Monthly Method)
An employer is permitted to adopt a more stringent “rule of parity” for purposes of determining when an employee who resumes services after a break in service can be treated as a new employee. Under this optional rule, if an employee’s break in service is for a period of at least 4 weeks, and his break is longer than his pre-break service, then he can be treated as a new hire upon resuming services. For example, if an employee terminates employment after completing 6 weeks of service and is rehired after 8 weeks, then he can be treated as a new employee. In contrast, if the general rule discussed above applies, the employee in this example would be treated as a continuing employee because his break in service is less than 13 weeks.
Continuing Employees – Special Unpaid Leave Rule (Required for Look-Back Method Only)
As mentioned above, a special rule applies to an employee whose break in service is less than 13 weeks (or who resumes services before the rule of parity period expires) and whose absence was due to a special unpaid leave. A “special unpaid leave” is a leave taken under the Family Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), or jury duty. The special unpaid leave rules apply only to an employer that applies the look-back measurement period to determine full-time employees. If during the look-back measurement period an employee takes a special unpaid leave, then the employer must either:
- Disregard the period of the special unpaid leave when averaging the employee’s hours of service, so that only those hours credited before and after the unpaid leave are averaged; or
- Impute the employee’s average weekly hours during the period of the special unpaid leave.
The result of this rule is that the employee’s average hours will be higher than in a non-special unpaid leave scenario, making it more likely that the employee will be considered a full-time employee for the next stability period.
Administrative Issues
An employer will need to ensure that its payroll or other HRIS systems are updated to accommodate these rules. In addition, an employer will almost certainly need to amend its health plan documents and summary plan descriptions to reflect these rules, especially since our experience is that many health plans otherwise do not provide detail about the effects of a break in service on an individual’s eligibility for the plan.
美国国税局法规通常规定，为避免美国联邦税务处罚，纳税人仅可依据符合法规特定要求的正式书面意见。本通讯未满足该等要求。 凡本通讯所载涉及美国联邦税务事项的书面信息，均非为避免美国联邦税务处罚之目的而撰写或提供，纳税人亦不得以此为依据规避相关处罚；且该等信息并非为支持通讯中所述任何交易或事项的推广营销而撰写。
法律快讯是我们持续致力于为客户提供即时资讯的重要组成部分，旨在及时传递影响客户及同仁的紧迫事务或行业动态。若您对本次更新有任何疑问或希望进一步探讨相关议题，请联系您的福里律师事务所律师或通过以下方式联系我们：
凯瑟琳·L·爱泽瓦
加利福尼亚州旧金山
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凯西·K·弗莱明
威斯康星州密尔沃基市
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贝琳达·S·摩根
伊利诺伊州芝加哥市
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威斯康星州密尔沃基市
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伊利诺伊州芝加哥市
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