If your business has employees, there is a critical change in the law that affects you in a massive way… and it kicks in on October 1, 2013. Notices are due to all employees. Here’s what you need to know.

Keep in mind that virtually all employers are subject to this notice requirement. Further, employers must provide these notices to all employees, regardless of their plan enrollment status, and regardless of whether they work part-time or full time…

• Do you have a part-time receptionist who helps you out?
• Do you have a household employee?
• Are you your own company’s employee?

In all cases, you have to provide the appropriate notice… even if it’s to yourself! Does that mean it’s a good idea to write a contract from your company to yourself stating that you gave yourself the notice? You bet.

These notices must contain specific content, including:

• Information on the services provided by the Exchange;
• How to contact the Exchange;
• Information about the employer and any employer-sponsored coverage available; and
• Advice to the employee regarding information he or she will need to gather in order to apply for coverage through an Exchange.

Notices must be free of charge and can be sent via First Class Mail, in person, or electronically provided that the employer meets the Electronic Disclosure Safe Harbor rules set by the U.S. Department of Labor, which states that the employee must have immediate access to the documents anywhere within the workplace in which the Exchange is being offered. Typically, a company-wide email will fit those criteria. It is recommended that employers have employees sign and date a document acknowledging receipt of the notice.

There has been some confusion regarding the existence of a penalty for failure to provide employees with the appropriate notice. The Department of Labor has indicated on its FAQ that no penalty will be assessed.  However, this runs contrary to the legislation as passed, which clearly states that any non-compliance will result in per-employee, per-day penalties.  It is important to note that legal precedent indicates that FAQs posted by government agencies are superseded by the enacted legislation.  Where there is a conflict, the law trumps the FAQ; therefore, we believe there is a penalty to be assessed in the event of non-compliance, though the size of that penalty is currently unknown.  Suffice it to say, we recommend that employers do not hesitate to comply and that they err on the side of conservatism; that is, when in doubt, it’s best to over-comply.

In an attempt to assist employers with this requirement, the Department of Labor has provided the following model notices entitled “Employee Notice of Coverage Options:”

– Model notice for employers who do not offer health insurance to employees.
– Model notice for employers who do offer health insurance to some or all employees.

Do not hesitate to contact us if you have any questions or need any assistance!