employee relations, a company’s public image, its ability to attract and
retain employees, and other non-quantifiable side effects of a decision to
violate the mandate. As discussed in Section IV below, the considerations
and calculations needed to decide what is the best course are complex and
can vary depending on an individual’s or employer’s particular situation.
B. Employer Shared Responsibility
A full exposition of the employer mandate and its many details is beyond
this paper’s scope; it is sufficient for present purposes simply to understand
the basics. The ACA defines FTE employees as those who work thirty
hours or more per week123 and applies the mandate basically to those
employers who have fifty or more FTEs.124 It defines “minimum essential
coverage” of health insurance in terms of what is covered, guarantees of
insurability and maintenance of coverage, and criteria of premium equity
and affordability.125 The ESR provisions require employers to provide at
least 95% of their employees with this minimum insurance and contribute at
least 60% to its cost.126 The insurance must cover the employee and any
dependents under the age of twenty-six, not including the employee’s
Employers are treated differently depending on their size, as measured
123. 26 U.S. C. A. § 4980H.
124. Id. Opponents of the ACA intent on limiting its reach have proposed amending the
law to define FTE employees as those who work 40 or more hours per week and to apply the
mandate only to larger employers. See Paul N. Van de Water, Health Reform Not Causing
Significant Shift to Part-Time Work, CTR. ON BUDGET & POLICY PRIORITIES, http://
www.cbpp.org/cms/?fa=view&id=4028 (Jan. 6, 2015) (last visited June 22, 2015).
125. 26 U.S. C. A. § 5000A (West, Westlaw through P.L 113-296 (excluding P.L. 113-
235, 113-287 and 113-291) approved Dec. 19, 2014). See generally, Individual Shared
Responsibility Provision - Minimum Essential Coverage, supra note 116 (detailing the
requirements for minimum essential coverage).
126. 26 C.F.R. § 54.4980H-4 (West, Westlaw through Apr. 23, 2015) (“[f]or purposes
of this paragraph (a), an applicable large employer member is treated as offering such
coverage to its full-time employees (and their dependents) for a calendar month, if for that
month, it offers such coverage to all but five percent (or, if greater, five) of its full-time
employees . . . .”); See also Questions and Answers on Employer Shared Responsibility
Provisions under the Affordable Care Act, INTERNAL REVENUE SERV., http://www.irs.gov/
Affordable-Care-Act/Employers/Questions-and-Answers-on-Employer-Shared-Responsibility-Provisions-Under-the-Affordable-Care-Act (last updated Feb. 18, 2015)
[hereinafter Questions and Answers]; see also CIGNA, supra note 121, at 1–2.
127. See 26 U.S. C. A. § 4980H (West, Westlaw through P.L. 113-296 (excluding 113-
235, 113-287, and 113-291) approved Dec. 19, 2014) (requiring dependents, not including
spouses, to be included in coverage. The ACA assumes that spouses will obtain insurance
either through their employer or by purchasing it on an exchange); 42 U.S. C. A. § 300gg-14
(West, Westlaw through P.L. 113-296, excluding P.L. 113-235, 113-287, 113-291),
approved Dec. 19, 2014) (extending coverage for dependents until they attain the age of 26).