Can an employer with more than 50, but less than 100 employees qualify for the Special Enrollment Period and does that exempt them from ACA penalties?

Yes and No. First, we’ll consider the Special Enrollment Period, then ACA penalties.

Special Enrollment Period
Any employer that qualifies for small group coverage can qualify for the Special Enrollment Period (SEP). Since employers with 1-100 employees qualify for small group coverage in California, an employer with more than 50, but less than 100 employees qualifies for the SEP.

The SEP was created as part of the ACA to help small employers qualify for coverage when they otherwise would not. During the SEP, all participation and contribution minimums are waived. An extreme example: an employer with 60 employees can qualify for coverage with only one enrolling employee while paying nothing towards that employee’s plan. Whether the employer and employees benefit from such an offering is a separate discussion, but an employer does qualify to offer coverage during the SEP in that scenario.

Employers wanting to secure coverage during the SEP need to apply between November 15 and December 15 for coverage effective January 1.

ACA Penalties
Is an ALE exempt from penalties if it secures coverage during the SEP?

No. An employer with more than 50 full-time and full-time equivalent employees (referred to as an Applicable Large Employer or ALE) is required to:

1. offer coverage to all full-time employees, and;
2. offer coverage of minimum value that is affordable.

It does not matter if the ALE purchased coverage during the SEP, the obligations above remain.

The danger is that in their enthusiasm to take advantage of the waived contribution requirement permitted in the SEP, the ALE may lose sight of the fact that they still have an ACA obligation to offer affordable coverage.

For example, if an ALE offers coverage secured during the SEP to its full-time employees, the ALE will satisfy the:

• “a” requirement above, and;
• “b” requirement above if that coverage is through a standard, fully-insured small group plan.

But, if the employer takes advantage of the SEP’s contribution waiver and makes no contribution or sets contribution at a low level, the coverage may not meet the ACA’s affordability standard. If an employee then secures coverage with a subsidy from the exchange, then the employer is at risk of being assessed a fine related to that employee and any other employee that does the same.

Securing coverage through the special provisions of the SEP doesn’t absolve the ALE of their large employer obligations under the ACA.