By Anita Byer and Martin Salcedo

On January 2, the Internal Revenue Service (IRS) published proposed regulations regarding one of the Affordable Care Acts more controversial provisions, the employer shared responsibility penalty. Starting in 2014, large employers could be assessed a penalty (tax) if they dont offer satisfactory, minimum essential health coverage to their full-time employees and their dependents.

There's some confusion among self-storage owners as to how this provision will affect their business. This article examines the definition of a large employer as well as penalties employers might incur and how to avoid them.

What Is a Large Employer?

An employer is considered large under the employer shared responsibility provision if it employs at least 50 full-time employees (30 hours per week), or

a combination of full- and part-time employees that equal at least 50 full-time employees. For example, 40 full-time employees and 20 part-time employees working 15 hours per week are equivalent to 50 full-time employees. In this case, the 20 part-time employees are counted the same as 10 full-time employees working 30 hours per week.

The number of employees in a given year will generally be used to determine whether an employer will be considered a large employer for the next year. In other words, if an employer has 50 full-time employees in 2013, it will be considered a large employer for 2014.

What Is the Penalty?

The amount of the employer shared responsibility penalty generally depends on whether the employer offers health coverage to its full-time employees. If a large employer doesnt offer health coverage, or offers coverage to less than 95 percent of its full-time employees (and their dependents), and at least one full-time employee receives a premium tax credit to help pay for health coverage on an Affordable Insurance Exchange, then that employer may be assessed a penalty equal to the number of full-time employees (minus 30) multiplied by $2,000 per year, or $166.67 per month.

If a large employer does offer health coverage to at least 95 percent of its full-time employees (and their dependents), and one or more full-time employees receives a premium tax credit to help pay for coverage on an Exchange, then that employer may be assessed a penalty equal to the number of full-time employees receiving a premium tax credit multiplied by $3,000 per year, or $250 per month. To make sure an employer offering coverage isnt penalized more than an employer not offering coverage, this penalty cannot be more than the number of full-time employees (minus 30) multiplied by $2,000 per year.

Click here to see an infographic that explains the employer shared responsibility penalty .

Because expanding a health plan to add dependent coverage may be difficult, the proposed regulations provide some relief. By taking steps toward offering coverage (not paying for coverage) for full-time employees dependents during the plan year that begins in 2014, a large employer will not be assessed a penalty during that plan year solely because it failed to offer coverage to the dependents of its full-time employees.

How Can a Large Employer Avoid the Penalty?

Remember that if one or more full-time employee receives a premium tax credit to help pay for health coverage on an Insurance Exchange, the employer may still be assessed a penalty, even if it offers coverage to at least 95 percent of its full-time employees. To prevent this from happening, the minimum essential health coverage offered by the employer must provide minimum value and be affordable.

Health coverage will generally satisfy the minimum value requirement if it covers at least 60 percent of healthcare costs. To be considered affordable, the employees required contribution for employee-only coverage cannot be more than 9.5 percent of the employees household income for the taxable year.

But how does an employer know the household income for each of its employees? Troubled by the same question, the proposed regulations provide three optional affordability safe harbors. Employers may use one or more of the following safe harbors for all employees or for any reasonable category of employees, provided they are used uniformly and consistently for all employees in a category.

Form W-2 safe harbor. Under this safe harbor, an employer will not be assessed a penalty for an employee if the required annual contribution for the employers cheapest employee-only coverage plan is not more than 9.5 percent of that employees Form W-2 wages received from that employer. If an employee isnt offered coverage for an entire calendar year, the Form W-2 wages can be adjusted to reflect the period for which coverage was offered.

This safe harbor is applied on an employee-by-employee basis after the calendar year. To avoid manipulation, the employees required contribution must remain consistent during the calendar year, and the employer cannot make discretionary adjustments to the required employee contribution for a pay period.

Rate of pay safe harbor. Under this safe harbor, an employer computes the employees monthly wages by multiplying the rate of pay for each hourly employee whos eligible for coverage under the plan as of the beginning of the plan year by 130 hours (the benchmark for monthly full-time status). For salaried employees, the monthly salary is used.

If the employees monthly contribution amount for the cheapest employee-only coverage plan is not more than 9.5 percent of the computed monthly wages, then the coverage is considered affordable. This safe harbor lets employers prospectively determine affordability without having to analyze every employees wages and hours. However, it may only be used for those employees who did not have their hourly wages or monthly salaries reduced by the employer during the year.

Federal poverty line safe harbor. Under this safe harbor, coverage is considered affordable if the employees cost for the cheapest employee-only coverage plan is not more than 9.5 percent of the Federal Poverty Line for a single individual. The proposed regulations allow an employer to use the most recently published poverty guidelines for the first day of the plan year.

The uncertainty surrounding many of the Affordable Care Acts requirements, including the employer shared responsibility penalty provision, is making it difficult for self-storage employers to prepare for the coming changes. Remember that the IRSs proposed regulations are subject to change. Nevertheless, employers who are (or may be) facing a penalty need to monitor developments and plan accordingly. Failing to do so may prove costly.

Anita Byer is president and CEO, and Martin Salcedo is general counsel/self-storage risk management group member, of Setnor Byer Insurance & Risk, headquartered in Plantation, Fla. For more information, call 888.253.8498; visit www.setnorbyer.com .