Generally, no.  Most guest workers performing seasonal agricultural work will be considered “seasonal employees” for purposes of the employer mandate. This does not mean that guest workers may be disregarded for purposes of the mandate. The “seasonal employee” concept is relevant for two distinct purposes with respect to the Employer Mandate.

First, there is the “seasonal worker” exception to the “50 or more full-time employees test,” which looks at an employer’s average number of full-time employees and full-time equivalents, or FTE, during a calendar year to determine whether the employer will be subject to the employer mandate in the following calendar year. 

If an employer’s workforce exceeds 50 full-time employees and FTEs 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 workers,” then the employer mandate will not apply in the following calendar year, regardless of whether the employer averaged 50 or more full-time employees and FTEs across the entire measurement year. 

In most cases, guest workers performing seasonal agricultural work will be considered “seasonal workers.”  Guest workers could assist an employer with avoiding the employer mandate by satisfying the “seasonal worker” exception to the “50 or more” test.  Guest workers are not simply disregarded for purposes of the “50 or more” test.

Second, once an employer is subject to the employer mandate, the obligation to “play,” or offer adequate and affordable group health coverage, or “pay,” pay a penalty tax for failing to offer such coverage, applies only to “full-time employees.”  In some cases, the seasonal nature of the work performed by guest workers may prevent them from qualifying as “full-time employees” for purposes of the employer mandate.  Guest workers are not simply disregarded for purposes of determining which employees qualify as “full-time employees.”

For more information or the full article, contact the Florida Fruit and Vegetable Association.

Blumling is a partner in Fisher & Phillips LLP.

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