Affordable Care Act (ACA) reporting under Section 6055 and Section 6056 for the 2018 calendar year is due in early 2019. Specifically, reporting entities must:
- File returns with the IRS by Feb. 28, 2019 (or April 1, 2019, if filing electronically, since March 31, 2019, is a Sunday); and
- Furnish statements to individuals by March 4, 2019.
Originally, individual statements were due by Jan. 31, 2019. However, on Nov. 29, 2018, the Internal Revenue Service (IRS) issued Notice 2018-94 to extend the furnishing deadline by 32 days. Notice 2018-94 does not extend the due date for filing forms with the IRS for 2018.
Despite the delay, the IRS is encouraging reporting entities to furnish statements as soon as they are able. No request or other documentation is required to take advantage of the extended deadline.
Section 6055 and 6056 Reporting
Sections 6055 and 6056 were added to the Internal Revenue Code (Code) by the ACA.
- Section 6055 applies to providers of minimum essential coverage (MEC), such as health insurance issuers and employers with self-insured health plans. These entities will generally use Forms 1094-B and 1095-B to report information about the coverage they provided during the previous year.
- Section 6056 applies to applicable large employers (ALEs)—generally, those employers with 50 or more full-time employees, including full-time equivalents, in the previous year. ALEs will use Forms 1094-C and 1095-C to report information relating to the health coverage that they offer (or do not offer) to their full-time employees.
Generally, forms must be filed with the IRS annually, no later than February 28 (March 31, if filed electronically) of the year following the calendar year to which the return relates. In addition, reporting entities must also furnish statements annually to each individual who is provided MEC (under Section 6055), and each of the ALE’s full-time employees (under Section 6056). Individual statements are generally due on or before January 31 of the year immediately following the calendar year to which the statements relate.
Extended Furnishing Deadline
The IRS has again determined that some employers, insurers and other providers of MEC need additional time to gather and analyze the information, and prepare 2018 Forms 1095-B and 1095-C to be furnished to individuals. As a result, Notice 2018-94 provides an additional 32 days for furnishing the 2018 Form 1095-B and Form 1095-C, extending the due date from Jan. 31, 2019, to March 4, 2019. The extended deadline is March 4, rather than March 2 as in prior years, because March 2, 2019, is a Saturday.
Despite the delay, employers and other coverage providers are encouraged to furnish 2018 statements to individuals as soon as they are able.
Filers are not required to submit any request or other documentation to the IRS to take advantage of the extended furnishing due date provided by Notice 2018-94. Because this extended furnishing deadline applies automatically to all reporting entities, the IRS will not grant additional extensions of time of up to 30 days to furnish Forms 1095-B and 1095-C. As a result, the IRS will not formally respond to any requests that have already been submitted for 30-day extensions of time to furnish statements for 2018.
The IRS has determined that there is no need for additional time for employers, insurers and other providers of MEC to file 2018 forms with the IRS. Therefore, Notice 2018-94 does not extend the due date for filing Forms 1094-B, 1095-B, 1094-C or 1095-C with the IRS for 2018.
This due date remains:
- Feb. 28, 2019, if filing on paper; or
- April 1, 2019, if filing electronically (since March 31, 2019, is a Sunday).
Because the due dates are unchanged, potential automatic extensions of time for filing information returns are still available under the normal rules by submitting a Form 8809. The notice also does not affect the rules regarding additional extensions of time to file under certain hardship conditions.
Employers or other coverage providers that do not meet the due dates for filing and furnishing (as extended under the rules described above) under Sections 6055 and 6056 are subject to penalties under Section 6722 or Section 6721 for failure to furnish and file on time. However, employers and other coverage providers that do not meet the relevant due dates should still furnish and file. The IRS will take this into consideration when determining whether to abate penalties for reasonable cause.
Impact on Individuals
Because of the extended furnishing deadline, some individual taxpayers may not receive a Form 1095-B or Form 1095-C by the time they are ready to file their 2018 tax returns. Taxpayers may rely on other information received from their employer or other coverage provider for purposes of filing their returns, including determining eligibility for an Exchange subsidy and confirming that they had MEC for purposes of the individual mandate.
Taxpayers do not need to wait to receive Forms 1095-B and 1095-C before filing their 2018 returns. In addition, individuals do not need to send the information they relied upon to the IRS when filing their returns, but should keep it with their tax records.
On Dec. 22, 2017, President Donald Trump signed into law the tax reform bill, called the Tax Cuts and Jobs Act, after it passed both the U.S. Senate and the U.S. House of Representatives.
This tax reform bill makes significant changes to the federal tax code. The bill does not impact the majority of the Affordable Care Act (ACA) tax provisions. However, it does reduce the ACA’s individual shared responsibility (or individual mandate) penalty to zero, effective beginning in 2019.
As a result, beginning in 2019, individuals will no longer be penalized for failing to obtain acceptable health insurance coverage.
?The ACA’s individual mandate penalty no longer applies, beginning in 2019. However, individuals will still need to certify on their 2018 tax return (filed in early 2019) whether they complied with the individual mandate for 2018.
In addition, a failure to obtain acceptable health coverage for 2018 may still result in a penalty for the individual for that year on their 2018 tax return (filed in early 2019).
The Individual Mandate
The ACA’s individual mandate, which took effect in 2014, requires most individuals to obtain acceptable health insurance coverage for themselves and their family members or pay a penalty. The mandate is enforced each year on individual federal tax returns. Starting in 2015, individuals filing a tax return for the previous tax year indicate, by checking a box on their returns, which members of their family (including themselves) had health insurance coverage for the year (or qualified for an exemption from the individual mandate). Based on this information, the IRS then assesses a penalty for each nonexempt family member without coverage.
Effect of the Tax Reform Bill
The tax reform bill reduces the ACA’s individual mandate penalty to zero, effective beginning with the 2019 tax year. This effectively eliminates the individual mandate penalty for the 2019 tax year and beyond. As a result, beginning with the 2019 tax year, individuals will no longer be penalized for failing to obtain acceptable health insurance coverage for themselves and their family members.
Impact on Years Prior to 2019
Although the tax reform bill eliminates the ACA’s individual mandate penalty, this repeal did not take effect until 2019. As a result, individuals were still required to comply with the mandate (or pay a penalty) for 2018. This means that individuals must still certify on their 2018 tax return (filed in early 2019) whether they complied with the individual mandate for 2018. Therefore, taxpayers should indicate on their 2018 tax returns whether they (and everyone in their family):
- Had health coverage for the year;
- Qualified for an exemption from the individual mandate; or
- Will pay an individual mandate penalty.
In addition, a failure to obtain acceptable health coverage for 2018 may still result in a penalty for the individual for that year. Individuals who are liable for a penalty for failing to obtain acceptable health coverage in 2018 will be required to pay that penalty when they file their federal income taxes in 2019. As a result, some individuals may be required to pay the individual mandate penalty in early 2019, based on their noncompliance for the 2018 tax year.
Effect on Other ACA Provisions
Despite the repeal of the individual mandate penalty, employers and individuals must continue to comply with all other ACA provisions. The tax reform bill does not impact any other ACA provisions, including the Cadillac tax on high-cost group health coverage, the PCORI fees and the health insurance providers fee. In addition, the employer shared responsibility (pay or play) rules and related Section 6055 and Section 6056 reporting requirements are still in place.
Many employee benefits are subject to annual dollar limits that are periodically increased for inflation. The Internal Revenue Service (IRS) recently announced cost-of-living adjustments to the annual dollar limits for various welfare and retirement plan limits for 2019. Although some of the limits will remain the same, many of the limits will increase for 2019.
The annual limits for the following commonly offered employee benefits will increase for 2019:
- High deductible health plans (HDHPs) and health savings accounts (HSAs);
- Health flexible spending accounts (FSAs);
- Transportation fringe benefit plans; and
- 401(k) plans.
Employers should update their benefit plan designs for the new limits and make sure that their plan administration will be consistent with the new limits in 2019. Employers may also want to communicate the new benefit plan limits to employees.
HSA and HDHP Limits
|HSA Contribution Limit
|Self-only HDHP coverage
|Family HDHP coverage
*Not adjusted for inflation
| Minimum deductible
|Health FSA (limit on employees’ pre-tax contributions)
|Dependent care FSA (tax exclusion)*
||$5,000 ($2,500 if married and filing taxes separately)
||$5,000 ($2,500 if married and filing taxes separately)
*Not adjusted for inflation
Transportation Fringe Benefits
|Limit (monthly limits)
|Transit pass and vanpooling (combined)
Adoption Assistance Benefits
|Tax exclusion (employer-provided assistance)
Qualified Small Employer HRA (QSEHRA)
|Payments and Reimbursements
|Employee elective deferrals
The Affordable Care Act (ACA) imposes a dollar limit on employees’ salary reduction contributions to health flexible spending accounts (FSAs) offered under cafeteria plans. This dollar limit is indexed for cost-of-living adjustments and may be increased each year.
On Nov. 15, 2018, the Internal Revenue Service (IRS) released Revenue Procedure 2018-57 (Rev. Proc. 18-57), which increased the FSA dollar limit on employee salary reduction contributions to $2,700 for taxable years beginning in 2019. It also includes annual inflation numbers for 2019 for a number of other tax provisions.
Employers should ensure that their health FSA will not allow employees to make pre-tax contributions in excess of $2,700 for 2019, and they should communicate the 2019 limit to their employees as part of the open enrollment process.
An employer may continue to impose its own health FSA limit, as long as it does not exceed the ACA’s maximum limit for the plan year. This means that an employer may continue to use the 2018 maximum limit for its 2019 plan year.
The ACA initially set the health FSA contribution limit at $2,500. For years after 2013, the dollar limit is indexed for cost-of-living adjustments.
2014: For taxable years beginning in 2014, the dollar limit on employee salary reduction contributions to health FSAs remained unchanged at $2,500.
2015: For taxable years beginning in 2015, the dollar limit on employee salary reduction contributions to health FSAs increased by $50, for a total of $2,550.
2016: For taxable years beginning in 2015, the dollar limit on employee salary reduction contributions to health FSAs remained unchanged at $2,550.
2017: For taxable years beginning in 2017, the dollar limit on employee salary reduction contributions to health FSAs increased by $50, for a total of $2,600.
2018: For taxable years beginning in 2018, the dollar limit on employee salary reduction contributions to health FSAs increased by $50, for a total of $2,650.
2019: For taxable years beginning in 2019, Rev. Proc. 18-57 further increased the dollar limit on employee salary reduction contributions to health FSAs by an additional $50, to $2,700.
The health FSA limit will potentially be increased further for cost-of-living adjustments in later years.
An employer may continue to impose its own dollar limit on employees’ salary reduction contributions to health FSAs, as long as the employer’s limit does not exceed the ACA’s maximum limit in effect for the plan year. For example, an employer may decide to continue limiting employee health FSA contributions for the 2019 plan year to $2,500.
Per Employee Limit
The health FSA limit applies on an employee-by-employee basis. Each employee may only elect up to $2,700 in salary reductions in 2019, regardless of whether he or she also has family members who benefit from the funds in that FSA. However, each family member who is eligible to participate in his or her own health FSA will have a separate limit. For example, a husband and wife who have their own health FSAs can both make salary reductions of up to $2,700 per year, subject to any lower employer limits.
If an employee participates in multiple cafeteria plans that are maintained by employers under common control, the employee’s total health FSA salary reduction contributions under all of the cafeteria plans are limited to $2,700. However, if an individual has health FSAs through two or more unrelated employers, he or she can make salary reductions of up to $2,700 under each employer’s health FSA.
Salary Reduction Contributions
The ACA imposes the $2,700 limit on health FSA salary reduction contributions. Non-elective employer contributions to health FSAs (for example, matching contributions or flex credits) generally do not count toward the ACA’s dollar limit. However, if employees are allowed to elect to receive the employer contributions in cash or as a taxable benefit, then the contributions will be treated as salary reductions and will count toward the ACA’s dollar limit.
In addition, the limit does not impact contributions under other employer-provided coverage. For example, employee salary reduction contributions to an FSA for dependent care assistance or adoption care assistance are not affected by the health FSA limit. The limit also does not apply to salary reduction contributions to a cafeteria plan that are used to pay for an employee’s share of health coverage premiums, to contributions to a health savings account (HSA) or to amounts made available by an employer under a health reimbursement arrangement (HRA).
Grace Period/Carry-over Feature
A cafeteria plan may include a grace period of up to two months and 15 days immediately following the end of a plan year. If a plan includes a grace period, an employee may use amounts remaining from the previous plan year, including any amounts remaining in a health FSA, to pay for expenses incurred for certain qualified benefits during the grace period. If a health FSA is subject to a grace period, unused salary reduction contributions that are carried over into the grace period do not count against the $2,700 limit applicable to the following plan year.
Also, if a health FSA does not include a grace period, it may allow participants to carry over up to $500 of unused funds into the next plan year. This is an exception to the “use-it-or-lose-it” rule that generally prohibits any contributions or benefits under a health FSA from being used in a following plan year or period of coverage. A health FSA carryover does not affect the limit on salary reduction contributions. This means the plan may allow the individual to elect up to $2,700 in salary reductions in addition to the $500 that may be carried over.
Plan documents that specify the health FSA dollar limit must be amended if the higher limit will be used in 2019.
The California Consumer Privacy Act (CCPA) is the first comprehensive data privacy law in the United States. Beginning Jan. 1, 2020, the CCPA generally grants consumers the right to:
- Know what personal information is being collected and sold or disclosed about them, and to whom it is sold or disclosed;
- Say no to the sale of their personal information; and
- Equal service and price, even if they exercise their privacy rights.
The CCPA applies to most companies that do business with California residents.
The CCPA has major implications for a large number of businesses across the United States. Employers in all states that collect personal information from consumers should determine whether they are subject to the law and, if so, prepare for compliance in 2020. This could mean significant changes to internal systems and processes regarding the collection, sale and disclosure of consumer information.
The CCPA grants California residents a general right to privacy and control over their personal information in consumer transactions. Specifically, the law grants consumers in California the following rights:
- The right to know what personal information is being collected about them;
- The right to know whether their personal information is being sold or disclosed, and to whom;
- The right to say no to the sale of their personal information (or, for individuals under age 16, a requirement that the consumer affirmatively consents to the sale of their personal information, known as “the right to opt-in”);
- The right to access their personal information; and
- The right to equal service and price, even if they exercise their privacy rights.
The California Attorney General will generally enforce the CCPA, and may impose civil fines of up to $7,500 per violation for intentional violations (fines will be less for non-intentional violations). In addition, the CCPA allows California residents to file a lawsuit against a company for any data breaches resulting from the company’s failure to implement reasonable security practices and procedures.
However, companies generally have 30 days from the date the business receives notice of an alleged violation to remedy it, if possible. If a violation is remedied within the 30-day period, fines will not apply.
The CCPA applies to all businesses that do business in California, collect personal information of California residents, and determine the purposes and means of processing that information, and that also satisfy one or more of the following thresholds:
- Have annual gross revenues in excess of $25,000,000 (as adjusted annually);
- Annually buy, receive for commercial purposes, sell or share for commercial purposes the personal information of 50,000 or more California residents, households or devices; or
- Derive 50 percent or more of their annual revenues from selling personal information of California residents.
This coverage extends to any entity that controls or is controlled by a business that meets the criteria above.
Definition of Personal Information
Under the CCPA, “personal information” means information that identifies, relates to, describes, is capable of being associated with or could reasonably be linked (directly or indirectly) with a particular consumer or household.
Personal information includes, but is not limited to, the following:
- A real name, alias, postal address, unique personal identifier, IP address, email address, account name, Social Security number, driver’s license or state identification card number, passport number or other similar identifiers;
- An individual’s signature, physical characteristics or description, telephone number, insurance policy number, education, employment, employment history, bank account number, credit or debit card number, or any other financial, medical, or health insurance information;
- Commercial information (including records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies);
- Biometric information;
- Internet or other electronic network activity information, including, but not limited to, browsing history, search history and information regarding a consumer’s interaction with an internet website, application or advertisement;
- Geolocation data;
- Audio, electronic, visual, thermal, olfactory, or similar information;
- Professional or employment-related information;
- Education information;
- Inferences drawn from any personal information to create a profile about a consumer reflecting his or her preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities and aptitudes.
“Personal information” does not include publicly available information (information that is lawfully made available from federal, state or local government records). Information is not “publicly available” if that data is used for a purpose that is not compatible with the purpose for which the data is publicly maintained.
De-identified information is exempt from the CCPA if it cannot reasonably identify, relate to, describe, be capable of being associated with or be linked (directly or indirectly) to a particular consumer.
Action Steps for Employers
Due to its expansive coverage and the large number of companies that do business with California consumers, it is likely that the CCPA will have a significant impact on many businesses across the United States. Before the law takes effect in 2020, employers in all states that collect personal information from consumers should determine whether they are subject to the CCPA and, if so, prepare for compliance.
This could mean significant changes to internal systems and processes regarding the collection, sale and disclosure of consumer information. Employers should consider enhancing their cybersecurity strategies prior to 2020, and ensuring that any third party agreements involving consumer data are revised to comply with the CCPA.
While cybersecurity is a growing concern for consumers globally, California’s CCPA is the first comprehensive data privacy law in the United States. As a result, it is likely that other states may implement similar legislation in an effort to protect consumers in their states. Even if a company isn’t affected by the CCPA, it might benefit the employer to review, and potentially revise, its data privacy practices in preparation for any data privacy laws that may be enacted in the future.
The Occupational Safety and Health Administration (OSHA) has issued a memorandum that reinterprets how its 2016 anti-retaliation rule applies to workplace safety incentive programs and drug testing policies.
Issued on Oct. 11, 2018, the memorandum eases some of the restrictions in OSHA’s previous enforcement guidance on the final rule. In that guidance, OSHA indicated that certain types of programs and policies would likely be considered violations if they involved specified circumstances.
The new memorandum takes a more permissive approach. It indicates that most types of workplace safety incentive programs and drug testing policies are allowable, as long as employers ensure that they do not discourage or penalize employees for reporting.
Employers should become familiar with OSHA’s new memorandum and review their safety incentive programs and drug testing policies to ensure compliance.
On May 12, 2016, OSHA issued a final rule that prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. OSHA’s 2016 enforcement guidance indicated that employers must have an “objectively reasonable basis” for any adverse actions they take against employees who report work-related injuries or illnesses. The guidance also stated that certain employer actions, such as the following, would likely constitute violations of the final rule:
- Drug testing employees who report work-related injuries or illnesses without a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness; and
- Withholding a benefit from employees simply because of a reported injury or illness without regard to the circumstances surrounding the injury or illness (such as under an incentive program that offers rewards for time periods without any reported injuries).
On Oct. 11, 2018, OSHA issued a memorandum that replaces any portions of the 2016 guidance that are inconsistent with it. In the 2018 memorandum, OSHA:
- Recognizes that many workplace safety incentive programs and instances of post-incident drug testing are intended to promote workplace safety and health;
- Advises employers that offer incentive programs that they may avoid violations by consistently enforcing legitimate work rules regardless of whether an injury or illness is reported; and
- Establishes that an action taken under a safety incentive program or post-incident drug testing policy does not violate the final rule unless an employer takes the action to penalize an employee for reporting a work-related injury or illness rather than to promote workplace safety and health.
Workplace Safety and Health Incentive Programs
OSHA directly addresses two types of workplace safety incentive programs in the 2018 memorandum.
The first type of program is one that rewards employees for reporting near misses or hazards, or encourages them to get involved in a safety and health management system. According to OSHA, positive action taken under this type of program is always permissible under the final rule.
The other type of incentive program is one that is rate-based and focuses on reducing the number of reported injuries and illnesses. This includes programs that reward employees with a prize or bonus at the end of an injury-free month or evaluate managers based on their work unit’s lack of injuries.
According to OSHA, rate-based incentive programs are also permissible under the final rule as long as they are not implemented in a manner that discourages reporting. More specifically, an employer may avoid violating the final rule through a rate-based incentive program by:
- Taking positive steps to create a workplace culture that emphasizes safety, not just rates; and
- Implementing adequate precautions to ensure that employees feel free to report an injury or illness.
In addition, an employer may counterbalance any unintentional deterrent effect of a rate-based incentive program on employee reporting by including elements such as:
- Rewards for identifying unsafe conditions in the workplace;
- An employee training program that reinforces reporting rights and responsibilities, and emphasizes the employer’s policy against retaliation; and
- A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
Workplace Drug Testing Policies
- The 2018 memorandum states that most instances of post-incident drug testing are permissible under the final rule and includes examples of allowable testing. Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees is one of the examples. This is significant because OSHA’s previous guidance indicated that a drug testing policy would have violated the final rule if it included automatic drug testing of an employee who reports a work-related injury or illness.
- The new memorandum clarifies that if an employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
Other examples of permissible drug testing that OSHA lists in the memorandum include:
- Random drug testing;
- Drug testing unrelated to the reporting of a work-related injury or illness;
- Drug testing under a state workers’ compensation law; and
- Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Contact Scurich Insurance or visit OSHA’s website for more information regarding safety incentive and post-incident drug testing programs.