Summer Is Almost Here. Do We Have To Offer Our Interns Benefits?

Are interns eligible for benefits?

The term “intern” is a common word which most everyone understands is a person who works (sometimes unpaid) for a temporary period of time for a company.  The classification of “intern” however, is not something recognized by the ACA. They are not defined for ACA purposes. Rather, for an Applicable Large Employer (ALE) to avoid exposure to the employer shared responsibility penalties, all their W-2 employees should be classified on their start date as either full-time (FT), part-time (PT), variable hour (VH), or seasonal depending on the facts and offered benefits accordingly.

Can’t an intern just be classified as seasonal?

Although it is true, the ACA does not require an ALE to offer coverage to a “seasonal” employee, seasonal is not synonymous with ‘intern’ so it is imperative to understand how the ACA defines seasonal, to avoid exposure to penalties.

Per Treas. Reg. 54.4980H-1(a)(38) the term seasonal employee means “an employee who is hired into a position for which the customary annual employment is six months or less”. 

Customary” means “that by the nature of the position an employee in this position typically works for a period of six months or less, and that period should begin each calendar year in approximately the same part of the year, such as summer or winter” [Emphasis added].


  • Ski resort instructor hired each year from November until March
  • A cattle ranch who hires extra ranch hands during foaling season, April – Sept.

However, there are no special pay or play rules for internships. Therefore, when deciding how to classify an “intern”, a key part of the seasonal definition that needs to be considered is “approximately the same part of the year”.

An employer who only hires temporary, full-time positions (i.e. interns) at a specific time of the year (e.g., summer) and they work for less than six months, it may be possible to classify them as seasonal. However, an employer who hires interns at various times of the year, those interns may not satisfy the seasonal definition.

Why does it matter?

An ALE mislabeling their interns as seasonal and not offering coverage for any month in which they were required to be treated as full-time, may face ACA non-compliance penalties. i.e. If the interns are less than 5% of the employee population, $338.33 per month, the §4980H(b) penalty in 2021. If they make up over 5%, there is exposure to the §4980H(a) penalty, 1/12($2,700) per month x total number of full-time employees minus 30.

It is possible under the right circumstances for an intern to be seasonal, however, an intern is not synonymous with a seasonal employee.

Employee Benefits

If interns are hired with the intent to work 30 or more hours a week on average, then they are full-time employees, even if their employment is temporary.  Thus, for an ALE to avoid a shared responsibility penalty, they would need to be offered ACA compatible coverage after the applicable waiting period, but no later than their 91st day of employment.

Options to Consider

  1. Exclude interns from coverage (if they make up fewer than 5% of the employer’s full-time population) and accept the risk exposure to the §4980H(b) penalty for any month in which the intern is required to be treated full-time.
  2. Offer interns the same coverage as permanent, full-time employees. (Many interns, if they are college students may be on their parent’s insurance and are uninterested in paying for their own coverage.)
  3. Establish a separate class for interns with a longer waiting period than the permanent, full-time employees (e.g., the 91st date of employment) with the intent of the intern not working longer than 90 days and never becoming eligible for benefits.*

*Note: This option requires carrier approval (some carrier’s systems are not set up to handle mid-month enrollment, nor prorate premiums) and the employer would want to continue to perform applicable nondiscrimination testing to ensure it doesn’t negatively affect the testing.

FT, PT, VH, or seasonal are the only classification options for ACA purposes. Mis-classifying an intern (i.e. failing to treat them as FT for ACA purposes) may expose an ALE to ACA penalties.

If you have a question, we are here to help! Let us end your employee benefits compliance confusion. Send us an email today!

The Compliance Rundown is not a law firm and cannot dispense legal advice. Anything contained in this post or on their website is not and should not be construed as legal advice. If you need legal advice, please contact your legal counsel.

Turning 65 Does Not Prevent HSA Eligibility

Medicare entitlement (entitlement=eligible & enroll) is no longer automatic for everyone when they turn 65, rather most will need to sign up to get Medicare Part A and Part B.  Medicare is only automatic for individuals who:

  • Are getting benefits from Social Security or the Railroad Retirement Board (RRB) at least 4 months before they turn 65
  • Are under age 65 and have disability benefits from Social Security or RRB for 24 months
  • Have ALS (also called Lou Gehrig’s Disease)

Therefore turning 65 and gaining eligibility for Medicare in and of itself, does not disqualify an employee from continuing to receive employer contributions or making their own contributions to an HSA. Only if one voluntarily enrolls in any part of Medicare would they then be disqualified. 

Employees wanting to work a few more years and delay retirement can continue to reap the triple tax advantage benefit of an HSA if they are otherwise an eligible individual.  Keep in mind however if an employee delays their enrollment in Medicare and continues to work beyond age 65, once the individual’s employment sponsored coverage ends, they have an eight-month special enrollment period to sign up for Medicare Part A. The first month of Medicare entitlement may be retroactive to the month they turned 65, or up to 6 months prior to enrollment, whichever is less. Therefore, an individual may become ineligible for an HSA & have to stop HSA contributions for up to 6 months before they apply for Medicare Part A benefits to ensure they do not over contribute to their HSA.

If you have a question on this or are stumped on another employee benefits compliance question, send us an email today! We’re here to explain complex compliance issues in layman’s terms.

The Compliance Rundown is not a law firm and cannot dispense legal advice. Anything contained in this post or on their website is not and should not be construed as legal advice. If you need legal advice, please contact your legal counsel.

Are You Prepared for a DOL Audit?

EBSA, a division of the DOL responsible for ensuring the integrity of nearly 722,000 retirement plans, approximately 2.5 million health plans, and a similar number of other welfare benefit plans, such as those providing life or disability insurance in the United States, closed 1,122 civil investigations with 754 of those cases (67%) resulting in monetary results for plans or other corrective action in Fiscal Year 2020. EBSA recovered:

• over $3.1 billion in direct payment to plans, participants and beneficiaries
• 456.3 million in connection with 171,863 “complaints” with an employee benefit plan by an individual

The risk is real! It is not a matter of “if” but “when” you get audited! In today’s information age, the government agencies easily share information too, so a “complaint” and investigation by one entity could lead to an audit by another. There are no “absolutes”.

What is your risk tolerance?

3 Tips for Proactive Employee Benefits Compliance

Tip #1 – Maintain written plan documents for every employee benefit plan. 

If you are ever selected for a DOL audit, it is important to have documents showing you are complying with ERISA and that you are maintaining these documents. This may not only reduce your exposure to penalties but also make the audit process more manageable and less time-consuming.

Plan documents are the foundation of any ERISA plan that you sponsor (i.e., all employer-sponsored plans, except churches and governments). ERISA requires that every employee benefit plan have a written plan document that describes the benefit structure and guides the plan’s day-to-day operations.  

Documents from the carrier are not usually ERISA plan documents. Carriers are not subject to ERISA. Their documents may have about 80% of what ERISA requires but typically are missing critical information (e.g., plan #, named fiduciary, ERISA discretionary authority language).  So, plan sponsors (e.g., employers) need to do something on top of the carrier documents. 

Tip #2 – Establish formal process for providing required ERISA documents to plan participants and beneficiaries.

ERISA has two primary requirements and satisfying both requirements fall on the plan administrator (typically the employer). In addition to the plan document requirement mentioned above, ERISA also requires that plan participants and beneficiaries receive specific documents at certain times of the year.  For instance:

  • Summary Plan Description – upon enrollment and at various other times, providing information the participant may rely on about the plan’s terms, including who is eligible and what the benefits are.
  • Summary of Benefits and Coverage (SBC) – upon enrollment and within 7 days upon request
  • Marketplace Coverage Notice – within 14 days of employee’s start date
  • Children’s Health Insurance Program Reauthorization Act (CHIPRA) – on the first day of each plan year, to all employees who reside in a state which medical premium assistance is available, regardless of the employer’s location, and at the time of initial enrollment.

There are potential penalties associated with not providing the document when required. Employers should keep a record of when these documents are provided, to whom and how. The DOL during an audit is likely to ask for proof of the required participant communications.

Tip #3 – Have a formal document retention policy.

ERISA generally requires employee benefit plan documents to be retained at a minimum of six years after the plan’s Form 5500 filing due date. (Employers who do not have a Form 5500 filing obligation also must maintain the documents for six years after the date a Form 5500 would have been filed if it were not for an exemption.)

Documents that should be retained include but not limited to:

  • Original signed plan documents and amendments
  • Corporate resolutions and/or committee actions related to the plan
  • Plan disclosures and communications to participants (including Summary Plan Descriptions and Summary of Material Modifications) –notices, open enrollment guides
  • Financial reports, audits, and related statements
  • Form 5500s
  • Trust documents
  • Nondiscrimination and coverage testing results
  • Disputed claim records in the event of future litigation
  • Payroll and census data used to determine eligibility and contributions

Best practice is to maintain these documents for the life of the plan, providing a paper trail of the plan from its beginning.

Bonus Tip: Do not let your first audit be with the DOL!

Plan sponsors on a regular basis should complete an internal compliance audit or “check-up” of their employee benefit plans for compliance with ERISA and other legal requirements. The check-up can uncover areas that an employer should be doing differently or need to be changing prospectively, making the DOL audit process more manageable and less time consuming.

Regardless of how sound your business practices are, every organization should be prepared for a DOL audit.

If you have any questions about the above, or want assistance with an internal compliance checkup, please contact The Compliance Rundown. We would love to hear from you!

The Compliance Rundown is not a law firm and cannot dispense legal advice. Anything contained in this post or on their website is not and should not be construed as legal advice. If you need legal advice, please contact your legal counsel.

State Mini-COBRA ARPA Subsidy Obligations

There are 21 FAQs in the DOL’s guidance released on April 7, 2021 providing clarification on the COBRA subsidy added by the American Recue Plan Act of 2021 (ARPA). Generally, when we think of COBRA, the focus is on federal COBRA laws, that are typically applicable to private sector employers subject to ERISA with twenty or more employees and governmental plans. State continuation, or ‘mini-COBRA” laws have been adopted by over 40 states and often fill in gaps where the Federal COBRA laws do not apply or extends coverage after Federal COBRA has been exhausted.

The COBRA subsidies under ARPA are also available to Assistance Eligible Individuals (AEIs*) enrolled in a state continuation program; however, ARPA does not change any state program requirements or time periods for election of state continuation. This means there are important differences on how the subsidies work for health plans only subject to state continuation (e.g., church plans or employer plans when the employer has less than 20 employees).

  • It does not add a Notice requirement for States if the State does not have a notice requirement now. The general notice, second election notice and subsidy expiration notice requirements are only applicable to federal COBRA plans. The DOL did provide a model alternative notice to satisfy mini-COBRA subsidy notice requirements.
  • If the state’s mini-COBRA laws do not provide continuation coverage due to a reduction in hours, an AEI is not eligible for a subsidy if they lost coverage because their hours were reduced.
  • Individuals must elect to receive state continuation within the state’s required original election time period, unless the state issues guidance permitting a second election period. The section of ARPA that provides for the second election period references ERISA, the Internal Revenue Code, and the Public Health Service Act—but does not explicitly address state law programs. 

*AEIs are those whose involuntary termination or reduction in hours occurred:

  • During the subsidy period (4/1/2021 – 9/30/2021)
  • Prior to the subsidy period but they have existing COBRA coverage extending into the subsidy period
  • Prior to the subsidy period and have not elected COBRA. But if they had elected, coverage would have extended into the subsidy period.
    • Includes those who elected and subsequently dropped COBRA coverage before the subsidy period begins.

If you have any questions regarding the COBRA subsidy guidance, contact:

The Compliance Rundown is not a law firm and cannot dispense legal advice. Anything contained in this post or on their website is not and should not be construed as legal advice. If you need legal advice, please contact your legal counsel.

Compliance Trap: HSA & Spouse’s FSA

Despite an employer’s best intentions, many entities don’t have processes in place to ensure that they are compliant with the IRS’s HSA rules. Others are not even aware of the compliance risks and find themselves in violation, which creates risks for both the company and their employees.

There are four main health savings account (HSA) compliance “traps” that I regularly find myself providing guidance on regarding HSAs, which fall into 4 main categories:

  • Disqualifying coverage – eligibility violations
  • Contribution issues – excess or ineligible contributions, failure to open an account
  • Cafeteria Plan Issues
  • Mistaken Contributions

All are equally problematic, however, for many employers open enrollment season is upon them and the one top of mind is disqualifying coverage, or what makes one ineligible for an HSA account.

According to the IRS, to be an eligible individual and qualify for an HSA, an individual must meet the following requirements:

  • Must be covered under an HDHP on the first day of the month
  • Cannot have disqualifying health coverage
  • Cannot be enrolled in Medicare
  • Cannot be claimed as a dependent on someone else’s tax return for the year

One of the most overlooked disqualifying coverages is a health flexible spending account (FSA) or a spouse’s health FSA (unless it is limited purpose or post-deductible).

The most common mistake I come across is when both spouses enroll in their own employer’s sponsored health coverage and one spouse elects a non-high deductible health plan (HDHP) plan with a general purpose health FSA and the other elects an HDHP plan and makes HSA contributions. Under the IRS tax rules, the health FSA could be used to reimburse qualified medical expenses on the employee, spouse or all dependents claimed on the employee’s tax return, therefore it is considered “disqualifying health coverage’ and it disrupts HSA eligibility. I often here, “but my spouse doesn’t spend their FSA $ on me”….that doesn’t matter. The FSA could be spent on the spouse, therefore, it disrupts HSA eligibility

For example:

  • Marcy and Charlie are married, Marcy is a full-time employee at Peanut’s Place and Scott is a full-time employee at Snoopy Hotel.
  • Marcy enrolls in single coverage PPO (e.g. non-HDHP) with Peanut’s Place and elects the health FSA.
  • Charlie enrolls in single coverage HDHP with Snoopy Hotel and wishes to enroll in the accompanying HSA but is ineligible. This is because Marcy has a health FSA (which is disqualifying coverage) and she is permitted to spend her health FSA dollars on her qualifying medical expenses, and those of her spouse and dependents.
  • Even if Marcy does not spend her health FSA dollars on Charlie, Charlie is still ineligible for Snoopy Hotel’s HSA.

It is important during open enrollment meetings that employers are providing education to employees and helping them be aware of this ‘trap’ so employees are enrolling in the health plan that works best for their situation and/or family.

This is Part 1 of HSA Compliance Traps. Be sure to follow my blog to learn about additional HSA Compliance Traps published later this year.

Affordable Care Act (ACA) Measurement Methods

The ACA has established rules on how to measure an employee’s hours to ensure an employee isn’t denied benefits based on a job title or classification of “part time” when in actuality they are working what the ACA considers full time (i.e. 30 hours a week or 130 hours a month). Part of these rules also includes when an employee must be offered benefits. 

Unfortunately, the measurement rules may be confusing, and often it’s easiest to understand the concept with an illustration (above). First, a few definitions:

  • Standard measurement period (SMP): a period of time (recommended is 12 months) for counting hours of service to determine full-time status for all ongoing employees
  • Ongoing employee: an employee who has been employed for at least one standard measurement period
  • Administrative period: allows time for enrollment and disenrollment, typically it’s 1 or 2 months
  • Standard Stability Period: when coverage must be provided if the employee averages full-time hours during the prior standard measurement period, this timeframe coincides with an employer’s plan year
  • Initial measurement period (IMP): lasts between three and 12 consecutive months, as chosen by the employer (we recommend 12), it begins on the first day of the calendar month following the employee’s start date
  • Initial stability period: when coverage must be provided if the employee averages full-time hours during their initial measurement period. If an employee does not average 30 hours/week during the IMP, the stability period cannot be more than one month longer than the IMP, typically this is the same length as the IMP

The above illustration is what these periods look like assuming a 1/1 plan year.

When an employee is hired as PT, their initial measurement period (IMP) starts the first day of the month after they were hired (e.g., date of hire 3/15/16, IMP starts 4/1/2016) and may last for up to 12 months (this diagram 11 months is used). During the IMP (e.g., 4/1/16 – 2/28/17) their hours are being tracked. At the end of the IMP (e.g., 2/28/2017), if the employee averaged 30 hours a week (or 130 hours a month) they must be offered benefits by the first day of their 13th month of employment which is the first date of their initial stability period (e.g., 5/1/2017). The employee also then must continue to be offered coverage for their entire initial stability period regardless of the number of hours they are working. 

These employees are also being measured during the SMP (e.g., 11/1/2016 – 10/31/2017) being used for all ongoing employees. If during the SMP they measure FT, the employee is eligible for benefits for the duration of the standard stability period (e.g., 1/1/2018 -12/31/2018), which means at the end of their IMP (e.g., 2/28/2017), benefits continue until the end of the standard stability period (12/31/2018). So, in the diagram above, on 4/30/2018 when the initial stability period ends, if from 11/1/16 – 10/31/17 (the standard measurement period) the employee measured full time, their benefits would continue until 12/31/2018. If, however, on 4/30/2018 the employee did not measure full time during the SMP (11/1/16 – 10/31/17) the employee would no longer be eligible for coverage. 

The other method that is available to use is the monthly measurement method, which means each month an employer determines whether an employee is/is not eligible for benefits based on the # of hours they worked the previous month and they would enroll/term accordingly monthly. Not a method that makes administrative sense for an hourly employee with fluctuating hours. 


“The Five Ws, and One H of Affordable Care Act (ACA) Measurement Methods.” Alera Group, 23 Dec. 2020,

Required Annual Notices for Health & Welfare Plans & Electronic Disclosure

Q: We have a client with many factory workers who do not have computers for work but they do have a breakroom with computers that employees can access regularly. Does this satisfies the requirement for electronic distribution?

A: If an employer wishes to provide annual notices electronically, there is an electronic safe harbor for distribution of documents for individuals without regular work-related computer access. However, the employer would need to have these employees affirmatively consent to the electronic disclosure and provide an email address for delivery of the documents. The employee, prior to giving consent must have been provided information that explains:

·   the types of documents that will be provided electronically;

·   that consent can be withdrawn without charge;

·   the procedures for withdrawing consent and updating information (e.g., address for receiving electronic disclosure);

·   the right to request a paper version and whether a charge applies; and

·   the electronic delivery system and what hardware and software will be needed to use it.


“The Five Ws, and One H of Required Annual Notices for Health & Welfare Plans.” Alera Group, 2 Oct. 2020,

ACA Affordability Safe Harbors

Q: Does an employer have to use the same safe harbor for all of their employees?

A: An employer may choose to use one safe harbor for all of its employees or to use different safe harbors for employees in different categories, provided that the categories used are reasonable and the employer uses one safe harbor on a uniform and consistent basis for all employees in a particular category. If an applicable large employer offers multiple health care coverage options, the affordability test for a particular employee applies to the lowest-cost self-only coverage option that provides minimum value and that is available to that employee.

Additional Resources:

Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act

“The Five Ws, and One H of Affordable Care Act (ACA) Affordability Safe Harbors” Alera Group, 23 Sept. 2020,

Leave of Absence & Employee Benefits

Q: I have an employee whom is out on FMLA due to an injury outside of work. If he chooses to decline insurance at open enrollment and then comes back to work later this year, would he be able to re-instate his insurance at that time?

A: Yes. When an employee is on FMLA they do not have to continue their benefits and upon return to work, all benefits must be restored without requalification. (Even if the employee chooses not to retain coverage during leave, the employer is obligated to restore coverage upon reinstatement). Or stated another way, an employee is free to stop their benefits while on FLMA at any time and then have them reinstated upon return.

The “rule” behind this is found here: §825.209   Maintenance of employee benefits.

(e) An employee may choose not to retain group health plan coverage during FMLA leave. However, when an employee returns from leave, the employee is entitled to be reinstated on the same terms as prior to taking the leave, including family or dependent coverages, without any qualifying period, physical examination, exclusion of pre-existing conditions, etc. See §825.212(c).

Q: We are a small employer (35 employees) and are not required to give FMLA leave; however we have elected to do so for our one employee who is due to give birth in the beginning of October. The company does plan to cover our portion of the medical benefits and during the period that she does not draw a paycheck, she will pay her portion of benefits directly to us. When does leave officially start and what the best practice is notify the employee of this start?

A: Let’s start with the basics. An employer who is not subject to FMLA, can provide a leave of absence (LOA). This LOA however, would not be a “protected” leave (e.g. requiring benefits to continue) under the federal FMLA law. Therefore, the first consideration is to check with the insurance carriers. In general, when on an unpaid, unprotected LOA, this is considered zero hours worked. If the plan’s eligibility requirement is 30 hours/week, they would no longer be eligible for benefits and COBRA should be offered due to a reduction in hours. TIP: An employer will want to verify whether their carriers will allow benefits to be maintained for someone on an unprotected LOA.  (If self-funded, check with the stop-loss carrier.)

NOTE: All employers, regardless of size, should have a formal, written LOA policy in their employee handbook. This policy would outline the LOA “rules” (e.g., what qualifies, when it starts, if PTO has to be used first, how long permitted, payment schedule & late payment rules, etc.), which would ensure not only that their employees are aware of their “rights” but also to ensure it is applied on a uniform and consistent basis, to avoid employee relations issues & discrimination claims (an employment law issue).

An employer not subject to FMLA, could follow the guidelines for FMLA (Family and Medical Leave Act Employer Guide), assuming approval is obtained from carriers. Otherwise, again, coverage would terminate and COBRA offered when the employee is no longer working full-time.

Additional Resources:

“The Five Ws, and One H of Health Reimbursement Arrangement (HRAs)” Alera Group, 25 Aug. 2020,

Understanding Wrap Plan Documents & Summary Plan Descriptions

Many employers do not fully understand Employee Retirement Income Security Act (ERISA), how it impacts business and employees, and the possible risks it presents. Employers face strict deadlines and liability under ERISA law and failure to comply with ERISA requirements can lead to costly government penalties and even employee lawsuits. According to a U.S. Department of Labor (DOL) audit report for the 2019 fiscal year, 67% of investigations resulted in penalties or required other corrective action.

One requirement under Section 402 of ERISA is that all employers who offer group health and welfare benefits to their employees, maintain a written plan document, and distribute summary plan descriptions (SPD) to plan participants.

The plan document must clearly identify certain information and provisions about the plan benefits, including the responsibilities for the operation and administration of the plan. Whereas the summary (of the) plan document (SPD) also referred to as a summary plan description, is the primary vehicle for informing participants and beneficiaries about their rights and benefits.”

Many employers make an incorrect assumption that the documents (e.g., coverage certificate or plan booklet) they received from their insurance carrier or third-party administrator (TPA) satisfies ERISA’s plan document requirements. It is true, these documents generally include detailed descriptions of the benefits available under the plan however, they do not contain everything that is required to satisfy ERISA’s plan document requirements. Group insurance policies are written to cover the legal needs of the insurance carrier, not to satisfy the requirements of ERISA, or to provide legal protection to the Employer.

ERISA’s requirements are the responsibility of the employer and plan administrator, not the insurance company. If the insurance booklets do not satisfy ERISA’s requirements, it is the employer that violates ERISA, not the insurance company.

 A Wrap Plan Document Fills the Gaps

A Wrap Plan Document is an umbrella document that wraps around existing carrier documents to ensure the required provisions and language to comply with ERISA are provided.  It contains legalese.  This umbrella document incorporates all other welfare plans, insurance contracts (medical, dental, vision, etc.) and other relevant documents to create one “plan”, generally referred to as ABC Company’s Health & Welfare Benefit Plan. The Wrap Plan Document provides additional legal protection for the employer and plan fiduciaries and can simplify plan administration.

A Wrap Summary Plan Description is a Summary [of the Wrap] Plan Document written in language that can be understood by the typical participant. It wraps around the carrier certificate of coverage or other benefit plan documents, to ensure ERISA’s requirements which are often missing from carrier documents are included. To be compliant, the Wrap SPD and accompanying benefit plan component documents must be distributed to plan participant at specific times.

The benefits available under a wrap plan document (e.g., ABC Company’s Health & Welfare Benefit Plan) are still governed by the insurance carrier’s policies. The wrap document simply supplements the information necessary to comply with ERISA—filling the gaps left by the insurance carrier’s (or TPAs) plan booklets.


“The Five Ws, and One H of Wrap Documents.” Alera Group, 10 Aug. 2020,