Which employees can waive coverage and be credited towards the group participation requirement?

The law does not allow a carrier to impose a participation requirement of more than 75% of all eligible employees. There is no participation requirement for dependents. A carrier shall count as covered under the small employer's health benefits plan, for the purpose of satisfying employee participation requirements, a full time employee who:

-Is covered as an employee or dependent under any fully insured health benefits plan offered by the small employer
-Is covered under Medicare
-Is covered under Medicaid or NJ FamilyCare
-Is covered under another group health benefits plan
-Is covered under a spouse's group health benefits plan
-Is covered under Tricare; or with respect to Small Business Health Options Program coverage only, is covered under an individual plan.


The term employee means an individual who is an employee under the common-law standard. See 31.3401(c)-1(b). For purposes of this paragraph (a)(15), a leased employee (as defined in section 414(n)(2) [26 USCS 414(n)(2)]), a sole proprietor, a partner in a partnership, a 2-percent S corporation shareholder, or a worker described in section 3508 [26 USCS 3508] is not an employee.

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