What are the 2021 San Francisco Health Care Security Ordinance (HCSO) required health expenditure rates for employers?

The San Francisco Office of Labor Standards Enforcement recently released updated Health Care Security Ordinance (HCSO) required health expenditure rates for 2021.

Effective January 1, 2021, the rate per hour will increase:

• from $3.08 to $3.18 for all Covered Employers with 100+ workers
• from $2.05 to $2.12 for for-profit Covered Employers with 20-99 workers and for non-profit Covered Employers with 50-99 workers.

For-profit employers with fewer than 20 workers and non-profit employers with fewer than 50 workers are exempt.

More information is available on the City of San Francisco HCSO website.

What is San Francisco’s Healthcare Accountability Ordinance?

Many have heard of San Francisco’s Healthcare Security Ordinance, which applies to employers based in the city/county of San Francisco, however, you may not be aware of San Francisco’s more costly Healthcare Accountability Ordinance (HCAO), which applies to employers located outside the city/county of San Francisco, but who contract with the city of San Francisco or one of its agencies (such as SF International Airport or the Port of SF).

The HCAO requires employers to offer one of the following to every covered employee (those that work 20 or more hours per week):

1. health plan benefits where the employer pays 100% of a typical silver level plan and fully-funds the deductible, or
2. make payments to the City for use by the Department of Public Health, or
3. under limited circumstances, make payments directly to the covered employee.

The payments in the latter two options are calculated as $4.95 per hour worked (capped at $198 per work week). Union workers are generally exempted as their plans typically meet all the requirements of the HCAO.

Comparing Costs of The Various Options

1. A typical Kaiser Silver plan meets all the requirements for option 1, except that it has a $2,000 deductible. The employer can fund the deductible through an HRA or select Kaiser’s $0 deductible Gold plan which meets all requirements. To keep the analysis simple, we’ll choose the latter option. The rate for a 35 year old in San Francisco for that Gold plan is about $445/month. If the employee averages 160 hours/month (40/week), the hourly cost is $2.78. If the employee works only 80 hours/month (20/week), the hourly cost is $5.56.
2. The cost of not offering a plan is $4.95 per hour regardless of how many hours the employee works, but with a cap of about $800 per month ($198/week times four).

Compare these choices with the required expenditure under the Healthcare Security Ordinance, which, for each hour worked is $1.89 (companies with 20-99 employees) or $2.83 (100 or more employees).

Conclusions – the HCAO is clearly more costly than the Healthcare Security Ordinance, however, if your client is subject to HCAO, they will have no choice but to comply with it. In that case, it is usually going to be less expensive for them to offer coverage than to pay the hourly rate to the Department of Health or to the employee.

Resources

The San Francisco Office of Labor Standards Enforcement has posted all relevant information on its Healthcare Accountability Ordinance website.

Which employers are required to comply with San Francisco’s new Paid Parental Leave Ordinance?

Currently, only employers with 50 or more employees are required to comply with the Paid Parental Leave Ordinance (PPLO), however, that changes on July 1, 2017 when employers with 35 or more employees must comply, and changes again on January 1, 2018 when employers with 20 or more must comply.

The SF PPLO requires employers to supplement compensation that an employee receives through the state’s Paid Family Leave program so that an employee’s compensation equals 100% of their gross weekly wage (up to a cap) during the six-week leave period.

Resources

The city of San Francisco’s PPLO web site provides an excellent explanation of the ordinance, how it interacts with the state’s Paid Family Leave program and how to calculate the PPLO benefit. The state’s Paid Family Leave web site is a good resource for employees who think they may qualify.

What obligations are Covered Employers required to meet?

Under the Health Care Security Ordinance (HCSO), all Covered Employers must meet the following obligations:

1.    Make the required Health Care Expenditures for all Covered Employees;
2.    Maintain records sufficient to establish compliance;
3.    Post a HCSO Notice in all workplaces with Covered Employees; and
4.    Submit a HCSO Annual Reporting Form to the Office of Labor Standards Enforcement (OLSE) by April 30th of each year.

What are the penalties for violations of the HCSO?

How should a Covered Employer using revocable expenditures handle a Health Care Expenditure that the separating employee has earned, but the employer has not yet contributed as of the separation date?

A Covered Employee may be entitled to Health Care Expenditures for the quarter in which the employee separates from employment based upon the hours payable prior to the separation.

The Covered Employer may satisfy this obligation in two ways. First, the Covered Employer may make the unmade contribution at the time of separation, in which case an accounting of this contribution must be included in the Separation Notice.

Second, the Covered Employer may make a post-separation contribution on its usual schedule, which must be no later than 30 days after the end of the calendar quarter. If the Covered Employer elects to make the final Health Care Expenditure after the separation, the following three criteria must be met:

1. The Separation Notice must indicate that the Covered Employee is entitled to a final Health Care Expenditure and when it will be made;
2. The separated employee must be provided a Revocable Expenditure Summary within 15 days of the post-separation contribution; and
3. The post-separation contribution must remain available to the separated employee for at least 90 days from the date of the contribution.

When do Health Care Expenditures have to be made?

Health Care Expenditures must be made within 30 days of the end of the preceding calendar quarter.

What is the minimum length of time a revocable expenditure needs to be available before the employer can reclaim unused funds?

Revocable expenditures count toward the Employer Spending Requirement provided the employer does not reclaim any part of the expenditure before the earliest of –

1. 24 months from the date of the expenditure*; or
2. 90 days after the employee separates from employment, provided they receive a separation notice; or
3. For revocable expenditures made for hours payable prior to January 1, 2014, the date that the Covered Employee knowingly, voluntarily, and permanently waives in writing the unused portion of such expenditure.

*Funds contributed to a Flexible Spending Account do not count as a Health Care Expenditure, because these funds only remain available to the employee for one calendar year. In order to qualify as a Health Care Expenditure, a revocable expenditure cannot be revoked for a minimum of twenty-four months (if the Covered Employee remains employed).

Can an employer allocate Health Care Expenditures for employees then recover any unused funds?

For hours payable on and after January 1, 2017, only irrevocable Health Care Expenditures shall be counted toward the Employer Spending Requirement.  In other words, only money actually spent on employee health care can be counted toward compliance with the HCSO.  This means that the employer cannot retain or recover any portion of the funds at any time, even if the employee leaves the job or if the business ceases to operate.

Health Reimbursement Arrangements (HRAs), as defined in IRS Publication 969, including excepted benefit HRAs and integrated HRAs, are considered revocable expenditures because the employer has the option to recover any unused funds at some point.

For an allocation of funds to a reimbursement arrangement to be counted toward the spending requirement, the funds must be actually paid over to a third-party trustee who has control over these funds in perpetuity or until the employee exhausts the funds through submitting claims.  The employer must have no access to, or control over, these funds and no possibility of ever recovering them.

Examples of Irrevocable Expenditures:

• Payments to an insurance provider for medical, dental, or vision insurance premiums
• Contributions to the City Option
• Contributions to Health Savings Accounts, Medical Savings Accounts, or other irrevocable reimbursement accounts

Note:  Employers will have until January 30, 2017 to make the required health care expenditures for the fourth quarter of 2016; 20% of expenditures for that quarter will still be permitted to be made revocably.

What do my employees receive if I contribute to the City Option on their behalf?

The City Option allows employers to contribute to the City’s public benefit program on behalf of their employees. Based on the information the employer provides, employees will be provided one of two health benefits:

1. Healthy San Francisco (HSF) – If an employee is eligible for Healthy San Francisco (HSF), the employer’s payment may be applied towards the Employee’s HSF enrollment, and the employee may receive a discount on HSF program participation fees. HSF is not health insurance. HSF provides limited services and providers for medical care.

   To be eligible for HSF, the employee must:
   a. Live in San Francisco,
   b. Be uninsured for at least 90 days,
   c. Be age 18 or over, and
   d. Not qualify for public health insurance programs (such as Medi-Cal).

2. Medical Reimbursement Accounts (MRAs) – If the employee is not eligible for HSF, the employer’s contribution is deposited in an irrevocable medical reimbursement account – MRA. Employees can obtain reimbursements from their MRAs for a full range of medical, dental, and vision expenses, including reimbursements for the cost of insurance premiums. The contributed funds remain available to the employee, and the employee may seek reimbursements for health care expenses from their remaining MRA balance at any time.