DEAR CARRIE: My husband works as a substitute teacher in a Long Island school district. He is currently covering for a teacher who is out on leave. He started as a sub the second week in September and will work up until the second week in June. He works five full days a week. How is it legal to not offer him health benefits? Normally he covers for teachers who are out for the day, but recently he was put in as a leave placement. He is doing grades and creating lesson plans. But he isn’t getting any pay increases or benefits. I’ve heard that some districts limit subs to four days a week to avoid paying them benefits, or they hire them from October to May. My husband, on the other hand, will work every day all year, and yet, there are no health benefits or pay increases for him. I don’t understand how this is legal. He asked to see his contract and was told that substitutes don’t have a contract. How are schools getting away with this? How is it not against the Affordable Care Act to have him working 30 hours-plus with no benefits? — Concerned Wife
DEAR CONCERNED: Those circumstances are indeed puzzling, since he is working full time. As you correctly point out, some employers limit employees to part-time status to avoid having to offer benefits because of the Affordable Care Act mandates. But when the worker is full time, that is another matter. I turned to an employment lawyer for answers.
Some background from him on the Affordable Care Act, also known as Obamacare, should help.
Despite numerous court challenges, "qualifying" employers must continue to offer "affordable” health insurance coverage to at least 95 percent of their full-time employees, said employment attorney Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola. Full-time employment is defined as working an average of at least 30 hours a week, he said.
Qualifying employers are those with 50 or more full-time equivalent employees, Grimaldi said.
In 2019, an employer’s health care benefits are deemed affordable if employees' cost for self-coverage is no more than 9.86 percent of one of the following: the employee’s W-2 pay, the federal poverty level, or the employee’s rate of pay times a certain number of hours, Grimaldi said. The IRS adjusts that percentage annually.
Against this backdrop, your husband may not have been offered coverage because his employer does not have a sufficient number of full-time employees to be deemed a qualifying employer or indeed has enough full timers to fall under ACA but elected to pay the applicable tax penalty in lieu of offering — and paying for — health coverage; or your husband has not worked a sufficient number of hours to qualify as a full-time employee, Grimaldi said.
Since your husband works in a local school district, it probably has more than enough employees to fall under ACA. So the other criteria might come into play.
"My recommendation is for your husband — or even better, his attorney — to write the school district and request a written explanation as to why he was not offered affordable health insurance coverage under the Affordable Care Act," Grimaldi said. "Depending upon the response, or lack thereof, your husband may have to pursue a legal remedy."
It's worth mentioning that the ACA has been repeatedly challenged in court, including the U.S. Supreme Court, on many occasions, Grimaldi said. And it was recently declared unconstitutional by a federal district court in Texas because last year's Tax Cuts and Jobs Act eliminated the “individual mandate, which is the requirement that individuals obtain health coverage or pay a tax or penalty.
"This case will likely be appealed to the U.S. Supreme Court, and until this appeal is exhausted," Grimaldi said, "the Affordable Care Act remains applicable to employers."
Go to bit.ly/LIaca for more on employers' responsibilities under the Affordable Care Act.