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Deadline Approaching for Employer Compliance with Pay or Play: Cash Outs and Affordability (New Guidance)

Fraser Trebilcock Employee Benefits Attorney Health Care Law HIPAAUnless transition relief applies, applicable large employers must comply with the Employer Shared Responsibility Mandate (i.e., Pay or Play) effective January 1, 2015.  Under Pay or Play, applicable large employers are required, among other things, to offer affordable medical coverage which provides minimum value to their full-time employees.  Although numerous guidance exists regarding determining whether coverage offered is affordable, this Client Alert focuses on the impact of cashable credits offered under a section 125 cafeteria plan.

Coverage is generally deemed affordable for an employee if the employee’s required contribution does not exceed 9.5% of the employee’s household income (safe harbors apply under Pay or Play). On November 26, 2014, the government issued final regulations regarding the individual shared responsibility mandate and addressed how affordability is affected by Code section 125 plans, as well as contributions toward health reimbursement arrangements (HRAs) and wellness program incentives.

Under these final regulations, amounts made available for the current plan year under a cafeteria plan, within the meaning of section 125, are taken into account in determining an employee’s or a related individual’s required contribution if: (1) The employee may not opt to receive the amount as a taxable benefit; (2) The employee may use the amount to pay for minimum essential coverage; and (3) The employee may use the amount exclusively to pay for medical care, within the meaning of section 213.  This means that cashable credits (i.e., employer contributions through a cafeteria plan that can be taken in cash in lieu of nontaxable medical benefits) cannot be used to lower the employee required contribution.

While the government has yet to address how such contributions will be treated under the Employer Shared Responsibility Mandate, it appears that the treatment will be the same.  Practically, this has significant impact on affordability calculations for employers under Pay or Play.  Indeed, if such contributions are in fact treated the same under Pay or Play, then cashable credits under a section 125 cafeteria plan (possibly including cash-in-lieu payments) would be treated as employee contributions (and not as part of the employer contribution) for purposes of the affordability determination.  More guidance from the government would be helpful especially as penalties can be imposed on employers as early as next month.

The final regulations related to the individual shared responsibility mandate can be found by clicking HERE.

Employers with section 125 cafeteria plans which provide cashable credits (including cash-in-lieu provisions) need to carefully analyze how this new guidance impacts their affordability determinations under Pay or Play.  Restructuring of an employer’s section 125 cafeteria plan may be necessary.

This email serves solely as a general summary of the recent guidance. If you have any questions, contact Fraser Trebilcock Shareholder Elizabeth H. Latchana at 517.377.0826 or

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2018 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or