The Patient Protection and Affordable Care Act requires employers to furnish employees a notice of the availability of coverage through public health insurance exchanges, i.e., the “Marketplace”. The Department of Labor requires that employers give employees the notice by October 1, 2013. As highlighted in our earlier blog post, Department of Labor Technical Release 2013-02 (http://www.dol.gov/ebsa/newsroom/tr13-02.html) provides temporary guidance and templates for the notice.
Who is subject to the notice requirement?
All employers that are covered by the Fair Labor Standards Act are subject to the notice requirement. That’s virtually all employers with annual sales or receipts of $500,000 or more as well as hospitals, schools, government entities, and other specified employers.
Which employees must be provided the notice?
Employers must provide the notice to each employee, regardless of plan enrollment status or part-time or full-time status. Employers should note that the definition of employee for this purpose is broader than the definition of employee for certain other purposes. For example, service providers classified as independent contractors for tax purposes may be employees for FLSA purposes and, if so, they must receive the notice.
What form must the notice take and what are the content requirements?
The notice must be in writing and must include information regarding the existence of the new marketplace/exchange and contact information and a description of the services provided by the marketplace/exchange.
The notice must also inform the employee that the employee may be eligible for a premium tax credit under the Internal Revenue Code if the employee purchases a qualified health plan through the marketplace/exchange.
In addition, the notice must inform an employee that if the employee purchases a qualified health plan through the marketplace/exchange, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for federal income tax purposes.
How may the notice be delivered?
The notice may be provided by first class mail, electronically (if the Department of Labor’s electronic disclosure safe harbor is satisfied) or in person (although employers should be sure to document in-person delivery). For an employee hired on or after October 1, 2013 (the deadline for furnishing the notice to current employees), the employer must provide the notice within 14 days of the employee’s start date.
Model notice
The Department of Labor also provided a model notice – one template for employers who do not offer a health plan and another template for employers who do. Employers should note that the model contains more information than is required to be provided by law and the Technical Release. Use of the model is not required. Employers should work with counsel in determining whether they want to use the model “as-is” or make modifications to it. The model language is available on the Department of Labor’s website at www.dol.gov/ebsa/healthreform.
Amendment to model COBRA election notice
Employers should note that the Technical Release also provides a revised model COBRA election notice which includes information about the marketplace/exchange. The model election notice is available in modifiable, electronic form on the Department of Labor’s website at www.dol.gov/ebsa/cobra.html.