FAQ: What benefit compliance considerations are there when large clients acquire smaller organizations? Is there a deadline by which a buyer must enroll acquired employees onto their plans?

Clients that are engaging in mergers and acquisitions should generally consult with legal counsel about the implications of the transaction on the two business entities involved. Counsel would be best suited to analyze the plans of the two clients and analyze obligations given the purchase agreement and benefits-related laws. However, we can provide some general considerations.

The initial step in determining what obligations the buyer in a transaction might have is to understand the legal structure of the transaction. The type of transaction is important because it determines whether the seller's rights and obligations are transferred by law to the buyer (although the parties can contract otherwise). With an asset purchase, any employees of the seller who will soon be working for the buyer would generally be considered terminated and rehired by a new employer (the buyer). With a stock purchase, the same employees would just continue to be employed by the same legal entity, soon to be owned by the buyer.

When it comes to the benefits plans of the buyer and seller, there is no one set transition timeframe. The timeframes would depend not only on the type of transaction and acquisition closing date, but on the type of benefits offered, applicable legal mandates, and the contractual agreements between the parties. Several considerations are outlined below. The buyer should discuss these with their counsel and work out the details prior to the transaction closing date.

First, the buyer should be cautious about an arrangement in which the seller agrees to continue to provide benefits for a transitional period after the closing date to former employees who are now newly hired employees of the buyer. This may result in the inadvertent creation of a MEWA, with additional compliance obligations and possible liability under both state and federal laws. Although some of those obligations are curtailed by law for certain transactions, the buyer will need to be sure of the implications of such a transitional period.

Second, there may be ACA considerations. If the buyer’s company had 50 or more full time or equivalent employees last year, it is an applicable large employer (ALE). As an ALE, the buyer is subject to the requirement to offer affordable minimum value coverage to full time employees.

It is not clear what the employer mandate would require if the acquired company is a non-ALE or an ALE. The general view is that if a non-ALE is acquired (via stock purchase) by an ALE group during a calendar year, the acquired entity becomes an ALE member beginning with the month in which the acquisition occurs. So, if the transaction occurs mid-month and the acquired entity was not previously an ALE that offered affordable minimum value coverage to full time employees, this could subject the buyer to potential penalties. If the acquired company was also an ALE complying with the ACA mandates, there are still issues concerning the measurement and stability periods that would need to be reviewed and addressed (particularly if the lookback method was used). If the acquired company used different measurement methods, an option may be available to continue using such methods for a transition period following the transaction closing date.

Third, there may be cafeteria plan issues. If the employees currently make pre-tax premium and other benefit payments through the seller’s cafeteria plan, will they now be offered participation in an existing cafeteria plan of the buyer? With an asset purchase, upon the closing date, the employees of the acquired business will cease to participate in the seller’s cafeteria plan and their elections would normally terminate at that time. New elections should be obtained from these employees for the buyer’s plan. If applicable, there may also be an option to transfer FSA balances from the seller’s plan to the buyer’s plan.

With a stock purchase, the buyer assumes sponsorship of the cafeteria plan covering the employees of the acquired business, and the elections under the plan could continue. Alternatively, the buyer may want to terminate the acquired business’ cafeteria plan at closing and enroll the employees in the buyer’s plan. A short plan year (for the acquired plan) would be allowed in this instance, provided the plan was amended and Form 5500 timely filed (which would be under an accelerated schedule). Although there is no direct regulatory guidance, new benefit elections for the acquired employees should also be permissible. However, if the transaction occurs mid-year and the cafeteria plan benefits include health or dependent care benefits, the employees should be given as much advance notice as possible so they can use their existing balances.

An additional and related issue is non-discrimination testing. Upon acquiring the stock (or assets) of a business, the buyer must determine the potential impact of including the employees of the acquired business in its benefit plans. Note that with respect to retirement plan coverage testing, there is a transition period from the closing date to the last day of the following plan year in which plans can be tested separately. Although it would seem reasonable to apply such a rule to Section 125 cafeteria plan testing, there is no direct regulatory guidance to that effect. A self-insured plan would also be subject to the Code Section 105 testing. Prior to the closing date, it would be advisable for the employer to assess the highly compensated versus non-highly compensated populations of the acquired employees and the effect upon testing results. This will help to prevent test failures and taxation of benefits for highly compensated employees.

COBRA may also be a consideration. If the seller maintains a plan after the sale, the seller would provide COBRA coverage to any COBRA qualified beneficiaries. However, if the seller ceases to maintain any group health plan in connection with the sale, then a group health plan maintained by the buyer must provide the COBRA coverage if 1) the buyer maintains a group health plan; and 2) in the case of an asset sale, the buyer is a successor employer. As with other issues, the parties can contract to allocate the responsibilities in a different manner.

Once these benefit decisions are determined, the plan document/SPD should be amended and employee disclosures and communications updated to reflect any changes.

To summarize, there is no one set period to transition the acquired employees to the new plans. It first should be determined whether the acquisition is an asset or stock purchase. Then, each benefit and its related compliance concerns would need to be reviewed. A brief summary of some potential issues are outlined above. Given the complexities and potential liabilities associated with benefit plans, it would be wise for the client to consult with counsel and develop a plan to address these issues well in advance of the transaction closing date.