A maze of regulations

Despite a ruling from the Supreme Court on the Affordable Care Act, landscapers still struggle to cut their way through increasing levels of red tape.

The U.S. Supreme Court has ruled that the tax subsidies for health insurance provided by the federal government to citizens in the 34 states that have not established the health insurance marketplaces or exchanges were legal. That means some 6 million people, including the nearly 3.5 million people on small business plans and small business owners, self-employed professionals and early retirees who depend on subsidized health care costs, will continue to receive them.

Unfortunately, despite those subsidies and other tax incentives, healthcare costs continue to skyrocket. And, according to a report from the Urban Institute, a Washington, D.C.-based think tank, small businesses are among those most vulnerable to the steep healthcare cost increases. In 2013, just 32 percent of businesses with fewer than 25 workers offered health coverage to employees.

The ACA today.

Admittedly, the Affordable Care Act (ACA) provides professional landscape contractors and their businesses with insurance options and increased buying power via the government-sponsored marketplace – as well as an overwhelming amount of confusion and paperwork. What can lawn care and landscaping business owners do to keep healthcare costs manageable while complying the ACA’s updated and ever-changing rules?

First, it should be understood that the ACA’s taxes and tax credits are based on the number of full-time equivalent employees (FTE) and their average annual wages, not solely on the number of full-time employees. In simple terms, FTE equals the total number of full-time employees plus the combined number of part-time employee hours divided by 30. Seasonal employees, contractors and business owners don’t count toward the total.


Overtime could get overhauled

The U.S. Department of Labor has proposed a change to federal overtime pay requirements, raising the exempt status of overtime pay to $50,440 in 2016. Under current rules, an employee is exempt from overtime if he earns a salary of more than $23,600 annually, and his primary duties are managerial, professional or administrative.

The DOL’s new proposal more than doubles the threshold to $50,440 annually. Employees who makes less than $970 a week would be classified as hourly, and would be paid overtime if they work more than 40 hours a week.

According Lawn & Landscape research, the average landscape company pays its salaried employees (account managers, supervisors, crew foremen/leaders and designers) less than $50,000 a year. Under the DOL’s proposal, all of these positions would become hourly jobs.

“Everybody is going to have to look at their workforce, how they’re being paid and how they’re being classified, and make decisions of whether they’re going to change how they do that to meet the requirements,” says Tom Delaney, director of government affairs for the National Association of Landscape Professionals.

The proposal hasn’t been finalized, and likely won’t be until 2016. – Katie Tuttle


The downside.

Other than the sharply escalating costs, every landscape contractor should be aware of the ACA’s downside. Although the negative side effects of the ACA are very real for some landscape businesses, many of the earlier radical claims were over-dramatized.

Of those who are required to comply, only truly large businesses that don’t currently offer benefits and employ many low wage full-time workers face truly hard decisions. Those businesses offering higher wages typically already provide benefits, while smaller businesses (with between 100 and 50 FTE) will benefit greatly from not paying a fee on the first 30 employees. So, a business with 100 FTE and 60 full-time workers will only owe the fee for 30 employees, assuming, of course, that they currently insure no full-time employees.

The upside.

It’s safe to say the smaller the businesses, the better the tax breaks. The ACA provides small businesses with affordable insurance options, cost assistance and increased buying power via the Small Business Health Options Program (SHOP). Small businesses with fewer than 50 FTE employees can use SHOP to get better deals on employee insurance, but aren’t mandated to do so. Consider a few of the ACA’s other and applicable rules:

  • Small lawn care and landscaping businesses can see up to a 50 percent reduction in their share of the cost of employee premiums. Employers with fewer than 25 FTEs, paying average annual wages below $50,000, qualify for tax credits to help pay employee healthcare premiums. Employers with 10 or fewer full-time employees, paying annual average wages of $25,000 or less, qualify for the maximum credit of 50 percent. The amount employers do pay is tax deductible and can be carried forward or backward.
  • Thanks to the ACA, employers can offer more and better quality benefits. In fact, because small businesses are able to shop for group health plans on their state’s health insurance marketplace via SHOP, a landscape contractor now has the same buying power as larger businesses. Along with tax credits and increased buying power, many landscaping businesses may now be able to provide benefits to their employees.
  • The self-employed with no employees can get health coverage through the health insurance marketplace for individuals, but not through SHOP.

Optional strategies.

Instead of shifting to the individual markets, some businesses have opted for a high-deductible group plan and set up a health reimbursement arrangement (HRA) to help offset employees’ medical expenses. An employer can dictate the expenses they will reimburse, thus limiting their out-of-pocket exposure.

An HRA can be structured so that if an employee does not use the money in an HRA, the money will still belong to the landscaping business. An HSA is another option, but it gives employers less control over how the money in an account is spent.

Waters of the United States rule stays murky

In September, a federal judge in North Dakota clarified his Aug. 27 decision blocking the implementation of the EPA and the U.S. Army Corps of Engineers’ Waters of the United States rule, which went into effect Aug. 28. He refused to impose a nationwide injunction on the EPA’s rule clarifying the scope of the Clean Water Act.

The rule is meant to clarify which streams, tributaries and wetlands are covered by the Clean Water Act. The judge’s injunction applies only the 13 states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

Most other cases have been consolidated into one lawsuit at the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

Proponents of the rule say it does not expand the Clean Water Act’s coverage or add new permitting requirements, but opponents are calling the rule a power grab. Many are concerned about the impact this will have on land use and construction, as well as public and environmental health. If expanded, the rule could require landscapers and LCOs to file permits when working near vastly more bodies of water; it could also impose Total Maximum Daily Load limits on smaller bodies of water. – Chuck Bowen


EPA tightens up training

EPA in September proposed stronger standards for applicators who apply restricted-use pesticides. The agency’s changes would require all applicators to be at least 18 years old, and certifications would have to be renewed every three years. And employees working under the supervision of certified applicators would now need training on using pesticides safely and protecting their families from take-home pesticide exposure. – Chuck Bowen


The subsidies.

Self-employed contractors and workers in small businesses can buy subsidized individual health insurance plans on government-run exchanges. This has reduced the uninsured rate among non-elderly workers at businesses with fewer than 50 employees from 23.5 percent in June 2013 to 13.2 percent currently. The uninsured rate among self-employed workers fell from 30.4 percent in mid-2013 to 19.6 percent.

The subsidies, available to anyone who earns between 100 and 400 percent of the poverty level, have helped reduce the cost of insurance – at least until recently. Escalating insurance costs have already begun impacting landscaping businesses.

Despite the ACA’s benefits to contractors and their employees, deciphering its ins and outs has been a challenge to many landscapers. Be sure to consult with a professional adviser to make sure you understand the law’s implications for your company.


Mark E. Battersby is a financial writer based in Ardmore, Pa.

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