“mandate” was not intended to be an absolute requirement;138 if it were, the
penalties for non-compliance would be set considerably higher. Given the
flexibility and choice allowed, employers will have to think carefully and
make tough choices about how they will handle their newly imposed
While allowing flexibility may have been the better thing to do
objectively—and was probably politically required to get the law passed—
the many variables designed into the law to accommodate different
employers’ particular situations and predilections make their decision
processes very complex. As with previous governmental regulatory
initiatives, such as the Health Insurance Portability and Accountability Act
(“HIPAA”),139 the ACA has spawned a whole industry of compliance
consultants and has required employers to choose among them, deal with
them, pay them, and in many cases adopt new policies and procedures to
accommodate the law.140 Understandably, this has generated considerable
unhappiness and resistance in the business community.141 Some employers
are unhappy about what the law actually requires, some are unhappy about
what they misperceive the law requires, and some are unhappy because they
do not know or understand what the law requires and resent the effort and
expense needed to find out.142 Overhanging all of this is the general
inclination of American businesses to distrust government and resist
incentivizes employers to either minimize the number of employees who accept “adequate”
employer-sponsored coverage or to minimize the number of employees who obtain
individual subsidized coverage from an exchange as an alternative to “inadequate”
138. See Summary of Coverage Provisions in the Patient Protection and Affordable
Care Act, KAISER FAM. FOUND. (July 17, 2012), http://kff.org/health-costs/issue-brief/summary-of-coverage-provisions-in-the-patient/ (stating that there is no employer
mandate; however, there are penalties associated with failure to offer coverage).
139. Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110
Stat. 1936 (codified in scattered sections of 42 U.S. C. and 29 U.S. C.); see also CHARLES R.
MCCONNELL, THE EFFECTIVE HEALTH CARE SUPERVISOR 470 (Jones and Bartlett Publishers,
6th ed. 2007) (discussing how complicated HIPAA compliance is and how it affects
healthcare providers’ feelings about governmental regulation).
140. See Japsen, infra note 151; see Demko, supra note 136 (expressing the general
feeling that companies have of unpreparedness in the face of the requirement to comply with
the employer mandate).
141. See The Employer Mandate: Examining the Delay and Its Effect on Workplaces,
GALEN INST. (July 23, 2013), http://www.galen.org/topics/the-employer-mandate-examining-the-delay-and-its-effect-on-workplaces/ (“Now, employers are more confused than ever
about their responsibilities and liabilities, including whether delay of the reporting
requirements does in fact also absolve them of the mandate itself.”).
142. See Barack Obama’s Message to Business: Stop Whining, I’m Your Friend, THE
ECONOMIST (Aug. 9, 2014), http://www.economist.com/node/21611140/print (addressing
Obama’s awareness of the business community’s “grumbling about the burden of
regulation” and complaints about “over-regulation”).