ALCC members have questions about the Affordable Care Act and how it interacts with the H-2B visa program. That response is simple: there is no difference. H-2B visa employees are treated the same as an American worker in terms of the law and the state exchanges.

More challenging, however, is the determination of who qualifies as a seasonal workers. Employers are obligated to determine who is a seasonal employee and calculate who is eligible for health coverage.

The STARS Act, to be reintroduced this year, defines and simplifies ‘seasonal worker’ and would help with this issue. ALCC, National Association of Landscape Professionals (NALP), and other seasonal industries all support this act. (View or download a brief from NALP's 2014 legislative conference for more info about this.) But until it is passed, the calculation of this status is left to the employer—with some guidelines.

ALCC asked NALP attorney Richard I. Lehr, Esq. and his colleagues at Lehr Middlebrooks & Vreeland, P.C. to help explain the definition of seasonal employee and how to determine whether an employer is an “applicable large employer.” (Read their full response here.)

The employer’s status as an “applicable large employer” sets the context in which seasonal employees are defined. In general, an employer would not be considered an applicable large employer if:

• the employer’s workforce exceeds 50 full-time employees for 120 days or fewer during a calendar year, AND 
• the employees in excess of 50 who were employed during that period of no more than 120 days were seasonal employees.

In situations like this, a seasonal worker means a worker who performs labor or services on a seasonal basis. But related statutes do not address how the term “seasonal employee” might be defined for purposes other than the determination of applicable large employer status. Through at least 2014, employers are permitted to use a reasonable, good faith interpretation of the term “seasonal employee” for purposes of IRS Notice 2012 -58.

As we are now in 2015 and no further guidelines have been offered, it is best to continue following this good faith interpretation. Most employers use the “look-back method” in making these seasonal worker determinations.

The look-back method
In the look-back method, an employer sets a period of time in which workers’ hours of service* will be measured. At the end of that period, the measurements should be evaluated by the employer in order to determine whether the worker is a full-time employee who should be eligible for health care benefits under the ACA.

Employers who have variable hour** or seasonal employees should establish a consistent time period for measuring variable hour employees. It is recommended that this time period:

• be at least six months
• be consistent
• be applied to all variable hour employees.

With regard to using the look-back method, IRS Notice 2011-36 specifically states that this “option” is being provided to employers to use in determining “whether new variable hour employees or seasonal employees are full-time employees,” with respect to the ACA requirements.

It is very important to document use of the look-back method. Related rules, measurement periods, and documentation should become part of a company’s policies and procedures.

According to Lehr Middlebrooks: “The primary benefit of the Look-Back Method is that an employer is allowed to measure employees who are not easily determined to be full-time (e.g. hired to be full-time from the beginning, working at least 30 hours per week on average). During the determining measurement period an employer is not required to offer coverage and is not subject to mandate penalties even where these individuals go to a health insurance exchange and receive subsidized coverage.”

In short, the issue of seasonal workers and the Affordable Care Act has multiple gray areas, and it is left to the employer to determine the proper definitions and health care eligibility in good faith. It is best to read the related IRS Notices and properly document your company’s determinations and the methods of determination in order to comply.

* ”Hours of service” varies from “hours worked” in that it applies to hours in which an employee is not working but is entitled to be paid (holidays, vacation, jury duty, etc.).

** A variable hour employee is one who, upon hire, it cannot reasonably be determined whether they will work on average 30 or more hours/week and be employed longer than 120 days.

Read more in this issue of Colorado Green NOW:
Drought watch: Is landscape industry poised for pain or profit?
California’s drought: dead lawns and denial
Early season strategies to keep your team upbeat and focused
Turf wars underway over robotic lawn mower