All employers, except for the relative few that are not subject to the Fair Labor Standards Act (FLSA), are required to provide a written Notice to their employees regarding the coverage options available under the federal health insurance Marketplace (the “Marketplace”) by Oct. 1, 2013. Although the Department of Labor (DOL) will not fine or penalize employers for failing to provide the Notice by this date, employers should make a good faith effort to comply with the Notice requirement.

Which Employees Must Receive the Notice?

All current employees must receive the Notice by Oct. 1, 2013. Current employees include those employees who are hired on or before Oct. 1, 2013, regardless of whether the employee is enrolled or eligible to participate in the employer’s health plan. The Notice must be given to full-time, part-time, temporary, and seasonal employees. However, employers are not required to give the Notice to any former employees or to an employee’s dependents.

For 2014, all employees hired after Oct. 1, 2013, must receive the Notice within 14 days of their hire date.

What Information Must the Notice Contain?

The Notice is statutorily required to contain the following information:

  • Information regarding the existence of the Marketplace, a description of the services provided by the marketplace, and how the employee may contact the marketplace to request assistance;
  • Information that the employee may be eligible for a premium tax credit if the employee purchases qualified health benefits through the Marketplace; and
  • A statement that if the employee purchases qualified health benefits through the Marketplace, the employee may lose any employer contribution to any health benefits plans offered by the employer, as well as the ability to exclude employer and employee contributions from his or her income.

Part A of the Model Notices (discussed below) meets these content requirements.

Has the DOL Provided Employers with a Sample Notice?

Yes. Most employers have likely seen the Model Notices published by the DOL, available for employers with coverage here, and for employers without coverage here.

The Model Notices have two parts: Part A and Part B. Part A provides general information regarding the Marketplace and sets out the required content discussed above. Part B requests optional information about the employer and the health coverage the employer offers, if any.

Employers may want to provide some of this optional information, such as the employer identification number and contact information and the plan eligibility information. Employers that choose to fill in Part B should be careful to provide only the information that they know is accurate. However, for employers that offer health coverage, the second page of Part B requires individualized information about whether the employer’s health plan meets the minimum value standard. It may not be practical for all employers to provide this information with the Oct. 1 Notice.

Are Employers Required to Use the DOL Model Notices?

Employers are not required to use the Model Notice and may find that the Model Notice is not tailored to their specific needs. Employers may use one of the Model Notices, as applicable, or a modified version, as long as the content requirements are satisfied.

If you have questions about whether you are subject to the FLSA, you need help responding to the questions in Part B of the Model Notice, or think you need a Notice that is individually tailored to your needs, please contact your usual Davis Wright Tremaine benefits lawyer.