This taxpayer works in the nuclear power plant shut down industry. The jobs are full time but not permanent. The income is reported on a W2 with federal & state taxes withheld but no benefits. The employee receives a per diem in addition to wages. The current job location is in Arizona. The taxpayer is a NC resident.

The corporation says they do not have to offer health insurance due to the person being contract labor. Based on the above facts, is this correct?


Per Diem employees can be considered full-time employees under the ACA if the work over 30 hours on average a year. Employers can use a look-back period of up to 12 months and reasonable methods of crediting hours to determine eligibility of full-time employees for health insurance. If an employee works more than 30 hours a week on average (or 28 as a safe harbor) they must be offered coverage as long as they maintain full-time status.

to be clear, the rule above applies to almost every type of employee, including per diem employees, although there are a few types of employees to whom extra rules apply (see below).

With that said, it is important to note that look back periods and measurement periods can be somewhat complex, and employers have some flexibility as to the length of the measurement period used.

On one hand employers use the above methods to determine if they have to comply with the mandate. On the other hand they use these methods to determine if an employee must be offered coverage.

Contract labor, adjunct teachers, traveling salesmen, airline pilots, and other professions which have harder hours to count are trickier to get right. Still the above rules apply.

We break down all of these topics on our very detailed, albeit slightly heady employer mandate page, but the excerpt you would be looking for is:

"Seasonal employees, contractors, volunteers, educational employees, services provided by student work-study programs, adjunct faculty, and business owners either don’t count toward the total or count toward the total differently. For those who do count toward the total, employers should use a reasonable method of crediting hours of service that is consistent with section 4980H of the IRS tax code."

Generally there is just a fine line between being a "contractor" and an employer using "contractor" status to avoid payroll taxes and providing benefits. Nothing you stated above specifically says you must be one or the other. Check out this article from the Department of Labor. We will collect more facts on this to help better educate people moving forward. Feel free to post more findings below.

TIP: For more information on Per Diem and the ACA, see

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Liz Shibahara on

Answer Rating:

What about contract nurses? I have been doing travel nursing for a little over a year. I spent six months in New Mexico, six months in Portland, Oregon, and am currently in Wyoming on a 13 week contract. My permanent residence is in Medford, Oregon, where my daughter is living in my house with my grandson.
I am not really sure how to get insurance or what state to even apply to. So I haven’t had insurance since 2013.
The doctors say I should follow up on my health care and get regular preventive care – I.E. mammogram, pap smear, lung CT to follow up on pneumonia from 2 years ago. They say, you are a nurse you should know this. But I don’t even know what state to go to and health insurance is very expensive.
Anyway, this answer was not helpful to know about how what state or anything. I don’t think the hospitals have to insure travel nurses and I don’t think the company I work for who is my travel company has to offer insurance either. on

You would apply in the state you consider your primary residence. Since you travel we would suggest getting a multi-state PPO that covers you country-wide (rather than a HMO). You can most certainly call HealthCare.Gov for further direction.

Denise Dixon on

Accountable Healthcare offers Health insurance to RNs that are on contract. As long as you continue on contract there will not be any lapse in insurance.

Matt M on

Answer Rating:

If the employee is full time and receiving a per diem – the taxable wage may be $8/hr (and the non-tax wage $30/hr.)
In this case – It could be viewed as the company’s healthcare plan does not provide affordable coverage for this individual – because only the taxable wage is taken into account. The company would then be penalized.
What mechanism does the employer have to offer a health care plan to new full time people that meet all the requirements for per diem but who’s taxable wage is far below affordable.
We cannot afford to increase the company contribution – for 200 employee’s. on

That is a really good question. Affordability is based on household income (MAGI). So assuming the non-tax wage doesn’t count as MAGI you could pay more into a given plan or pay more in non-tax wages, or limit hours so they don’t work more than an average of 30 a week or 130 a month.

This is guesswork, so hopefully more people will comment with more exact information.

Benny L on

I recently completed my seasonal contract as a RN over 18 wk period. Now I am trying to return to my per diem status. I pick up shifts as they need me or as my busy family schedule allows. I typically work 2-3 12 hour shifts a week or every other week. I have even taken a whole week or two off. Minimum 3 shifts in a 6 wk period. Average 6-10 shifts in 3 months. True to the definition of per diem. I do not have a second job so my schedule is flexible.
My employer is telling me that I cannot work 3 shifts in one work week because it is against Obama care rules where they have to offer me benefits. I am NOT looking to pick up 3 shifts every week, nor do I need benefits. They are telling me because of this Rule I can not even work 3 shifts together in a given week.
I understand that an employer must offer healthcare benefits to people who work over 30 hours a week. Please explain to me how this applies to me if I don’t have a fixed schedule?

Rae Wardell on

PER-DIEM Nurses in some hospitals are being limited on the number of hours they can work. If I work more than 30 hours a week, my employer is saying they can change my status and offer me benefits. They are demanded this is a federal law. What I don’t get is how other hospitals allow there per diem staff to work as many hours as they want. I have benefits, I am fully covered under my spouse. I don’t need or want benefits from my employer. I appreciate any feedback you may have.

Eric on

My wife is a physical therapist assistant. She is working prn for a company. The hours can vary significantly. No work one week, ten hours the next, maybe 12 another. How would this work if we were trying to qualify for a subsidy?

[email protected] Erin on

She would want to estimate to the best of her ability her annual income and update the Marketplace if that income expectation changes during the year. Premium Tax Credits (PTC) can be paid to the insurer in Advance to offset premium costs, but this type of cost assistance is adjusted on your year end tax return. So if you estimate to low of income, you’ll owe some of it back. If you estimate high, then you could get more tax credits back on your taxes. Cost Sharing Reduction Subsidies (CSR) is paid to the insurer to lower out-of-pocket costs for those on a Silver Plan between 100% and 250% of the Federal Poverty Level. This is not affected by differences in projected income vs actual income at the end of the year.

Susan on

I work as an E.M.T for a town in rural Maine. I work anywhere from 48 to 72 hours each week and receive no benefits (nor do any of my coworkers). As an E.M.T we get paid $7.50 per hour on-call and $8.00 if we respond to a call, an Advanced E.M.T is paid $7.50 per hour on-call, $8.00 if responding to a call, or $9.00 an hour (during the call) if using their advanced E.M.T skills. A paramedic makes $15.00 per hour and works 36 hours per week, with overtime pay for anything over 40 hours. The E.M.T or Advanced E.M.T do not receive overtime pay and get paid for four holidays if we work them.

I have been told that because we can respond from home (if live within 4 miles of the station) that we are not entitled to overtime or benefits. I along with the Paramedics opt to stay at the station during our 12 hour shifts.

Is this legal?

Lauren Lee on

I was recently told that there is a labor law that states that PRN or per diem employees can only work 19 hours per week. Is this true and where can I find this information??

Jennifer Moore on

I am a per diem registered nurse that works 4, 12 hour shifts a week. I have not been offered health insurance. Should I speak to HR about the Affordable Care Act?

Erin on

You should! That said, per diem has special rules (as do a few other employee types like pilots), so it may be in-line with the law or you may still be in some sort of “measurement period”.

billy bob on

i have insurance why should this affect me at all? the ducking odumy care sucks big time

Mark on

I am a per diem RN with a large healthcare organization. I avg about 25 hours per week over a 12mo period and from what I have read online that I should be treated as a part time employee in regards as health insurance, but my employer states flat out that I am NOT eligible for benefits based solely of my employment status of per diem. I have emailed the Director of Benefits and basically stonewalled and will not even listen to or look at what is online about per diem and the ACA. There are some per diem RNs that avg over 30 hrs per, which according to ACA, should be offered FT benefits, but are not because of their per diem status. I would like to hear from any one that could direct me to how to alert my employer to acknowledge the ACA changes and per diem employees. on

There is some truth to both sides of the argument here.

On one hand there are specific types of employees, like seasonal employees, which have their hours counted differently.

However, even with per diem, the rule of 30 hours a week over a 12 month period applies (you can see specific rules here; it is actually a 6 month period that should be used for calculation I believe, although employers have some flexibility in measurement periods… and generally measurement periods are a little complex as to if we are looking back or forward).

In short, details of measurement periods aside, a per diem RN that averages over 30 hours (or 28 as a safe harbor) should be offered health benefits. Meanwhile, one that averages less does not have to be.

The per diem status alone does not matter.

Vanessa on

I am a per diem RN and work full time hours. What if I do not want the health care benefits because I get higher pay and get health insurance through my husband’s work? My company is under new management and wants to cut my hours if I dont accept full time position. I dont want full time position because per diem makes me choose days I can work. on

So in terms of healthcare, if you work 30 or more in this company it seems to me that they are a business with over 50 employees and would therefore offer you employer-based coverage. In this case you may have to take it, even if you use your Husband’s insurance as your primary health insurance. You can talk to your company about it, but both Per Diem and full-time can qualify as full-time depending on actual hours worked, so that is something to consider here.