When considering what constitutes affordable coverage under the Affordable Care Act, some employers have come to me and said “Well, I will just charge everybody 9.5 percent of employees’ pay.” And on its face, that seems to be what the rule permits. But, as with other components of the ACA, Congress may have overlooked that our old friend ERISA already has a little something to say about what employees can be charged as a contribution.

Generally, ERISA does not require plans to provide the same benefit coverage to all employees. But the plan’s offerings have to be made in a manner that is non-discriminatory. HIPAA makes it illegal to charge different contributions to employees based on health factors. Specifically, an employer cannot charge some employees more than any other similarly situated individuals based on medical conditions, claims experience, receipt of health care services, genetic information or disability. But HIPAA does allow an employer to make other distinctions in benefits that are offered in the cost to employees, provided the distinctions are not discriminatory.

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