The DOL’s Employee Benefits Security Administration (EBSA) has issued new guidance on the Affordable Care Act (ACA) requirement that employers provide employees with a notice of their health insurance coverage options available through the future health insurance exchanges (“Exchange” or “Marketplace”). This notice requirement is established through section 18B of the Fair Labor Standards Act (FLSA), added by the ACA. Technical Release 2013-02 – Guidance on the notice to employees of coverage options under FLSA §18B  – provides temporary guidance regarding the new notice requirements, and notes the availability of a Model Notice for employers who offer a health plan to some or all employees; a Model Notice for employers who do not offer a health plan; and a Model Notice for employers who do not offer a health plan COBRA Model Election Notice.

As discussed in the guidance, all employers subject to the FLSA are required to provide the notice of health coverage options to each new employee at the time of hiring beginning October 1, 2013, and to all current employees by October 1, 2013. In 2014, a notice will be considered to have been provided at the date of hire so long as it is provided within 14 days of an employee’s start date. All employees must receive this notice, regardless of plan enrollment status (if applicable) or of part-time or full-time status. Separate notices to dependents or other non-employees who may become eligible for coverage are not required.

With respect to the form and content of the notice, the guidance explains:

Pursuant to the statute, the notice to inform employees of coverage options must include information regarding the existence of a new Marketplace as well as contact information and description of the services provided by a Marketplace. The notice must also inform the employee that the employee may be eligible for a premium tax credit under section 36B of the Code if the employee purchases a qualified health plan through the Marketplace; and a statement informing the employee that if the employee purchases a qualified health plan through the Marketplace, 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.

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