The final regulations on the ACA’s shared responsibility rules for employers (the “employer mandate”) established basic rules for compliance, including:

• Rules for determining whether the employer mandate applies
• A look-back measurement methodology that most employers subject to the rules will use for determining who is a full-time employee
• Safe harbor alternatives for determining whether coverage is affordable

Ordinarily, the employer mandate will apply to employers with at least 50 full-time employees, but the final regulations give employers with fewer than 100 full-time employees an extra year to comply with the new rules. Employers will need to determine whether the mandate applies to them in 2015 and, if so, to set in place a process to comply. In many situations, the need to develop that process has already begun.

The final rules also address a number of specific situations, including the rather vexing problem created by personnel who provide services through a staffing agency (including a professional employer organization, or PEO). Under the employer mandate, the common law employer of these workers is responsible for providing adequate, affordable health coverage that meets the basic requirements of the mandate. But it is not always easy to determine who the common law employer is. This presents a dilemma for both staffing firms and their employer customers.

Under the final regulations, a staffing firm may provide this coverage on behalf of its employer customers to satisfy the employer customer’s obligations under the ACA, but that coverage needs to meet ACA standards, and the employer needs to pay the staffing firm more for individuals who enroll in such coverage than for those who do not. Employers and staffing firms may wish to begin discussions now on appropriate modifications to their contracts.