With the flurry of activity and information resulting from the ongoing implementation of the Patient Protection and Affordable Care Act, as amended ("Affordable Care Act"), one particular disclosure requirement applicable to employers—originally to be effective March 1, 2013—has gone mostly unnoticed. As of yesterday, however, this is no longer problematic because the Department of Labor ("DOL") issued much-anticipated official guidance (in the eleventh of its series of "FAQs About Affordable Care Act Implementation") delaying the implementation deadline for the new employer exchange notice until regulations are issued and become effective. The DOL anticipates the notice will be required to be distributed beginning in late summer or fall 2013.
Because many of the details required to be communicated in the employer exchange notice are still under development, this guidance provides welcomed relief.
The Affordable Care Act amended the Fair Labor Standards Act ("FLSA") to require that employers provide to each current employee, by March 1, 2013 (now delayed), and to each employee hired on or after that date, written notice about the applicable insurance exchange(s) and the consequences of exchange enrollment with respect to coverage under the employer's plan.
Specifically, new Section 18B of the FLSA requires the following be included in this employer exchange notice:
- information about the exchange(s), including a description of services provided and contact information;
- information about eligibility for a premium tax credit or cost-sharing reduction for exchange coverage, if the employer's plan provides less than 60% coverage; and
- notice that, if the employee purchases coverage through the exchange rather than through the employer's plan, the employee may lose employer contributions—and the favorable federal tax treatment of such contributions—toward coverage under the employer's plan.
The DOL currently is considering providing a model and/or other means for employers to comply with this notice requirement. Also, the DOL describes that future related guidance "is expected to provide flexibility and adequate time to comply."
Watch for future alerts from us as additional guidance on this employer exchange notice requirement is issued.
If you have any questions or would like further information, please contact any of the attorneys in our Employee Benefits Practice.