October 1, 2013, is the deadline for U.S. employers to notify all of their employees (including part-time employees) of the availability of state health insurance "marketplaces," or exchanges. The notification requirement was added by Section 1512 of the Patient Protection and Affordable Care Act ("ACA") which added a new Section 18B to the Fair Labor Standards Act ("FLSA").
All employers that are subject to the FLSA are subject to this notice requirement. This includes hospitals, schools and institutions of higher learning, and federal, state and local government agencies. The exchange notice must be provided in writing and may be provided by first class mail or electronically if the requirements of the electronic delivery regulations of the U.S. Department of Labor ("DOL") are satisfied. The notice must inform the employee of the following:
The DOL has provided two model notices on its website, one for employers that provide health insurance to their employees and one for employers that do not. Employers may customize the model notices, which contain additional information that the ACA does not specifically require.
Although the DOL's Employee Benefits Security Administration department ("EBSA") recently issued an FAQ which clarified that no fine or penalty will be imposed for failure to provide the exchange notice, EBSA officials have informally advised that employers should nonetheless comply with this requirement. They have cautioned that employers should not interpret the statement in the FAQ that there is no penalty under ERISA for failure to provide the exchange notice to mean there will be no adverse consequences if an employer fails to timely provide the exchange notice. In addition, the information in the exchange notice is crucial for employees in order to make a decision whether to enroll in coverage under an exchange or choose employer-provided coverage.
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