As this article is being written there is much uncertainty surrounding the “Patient Protection and Affordable Care Act (PPACA)” aka the “Affordable Care Act (ACA)” aka “Obamacare.” Whatever you call it, barring a major change, there are two steps that employers must take now to remain in compliance with the law as it is currently written.  Beginning October 1, 2013, all employers subject to the Fair Labor Standards Act (FLSA) must provide a notice to new and current employees regarding coverage options available through a health insurance “Marketplace” (previously called an “Exchange”), as a part of the ACA.  Employers should be aware that notification of the marketplace is required regardless of whether they offer health insurance to their employees or not. 

The second requirement is to update the current COBRA notification forms that you are providing plan participants. 

Distribution and Timing of the Marketplace Notice to Employees 

Employers must provide the marketplace notice to each employee, regardless of whether the employee is enrolled in their group insurance plan or whether the employee works part-time or full-time.  However, as in the case of the notices for COBRA, a separate notice to dependents is not required.  Furthermore, employers are not required to provide marketplace notices to independent contractors.  

Ongoing, all new employees hired between October 1 and December 31, 2013, must be provided with the notice of the Marketplace on their start date.  For 2014, the DOL will consider a notice to be provided at hire if it is produced within 14 days of the employee’s start date.  For current employees, the Marketplace notice was to be delivered no later than October 1, 2013. 

The DOL requires that the informational notice regarding the Marketplace must be provided automatically and free of charge to employees.  Notices can be delivered interoffice, by first class mail, or electronically (provided that the delivery meets the DOL’s electronic disclosure safe harbor requirements).  

The DOL’s Employee Benefits Security Administration (EBSA) has provided a model of the notice requirements.  Employers may use this model notice, or a modified version, provided that it meets the content requirements and is written in a manner that is understandable to any employee.  A weblink to the two versions of the notice is provided at the bottom of this article.  One is for employers that offer a health plan to some or all of their employees, the second to those that do not offer a health plan. 

Updated COBRA Election Notice 

All employers with group health insurance plans should discard all of the forms they currently use to advise employees and dependents of their COBRA rights.  The EBSA has also released an updated model COBRA election notice.  This notice has been modified from all previous versions to include information that will help make qualified beneficiaries aware of other coverage options available in the Marketplace.  Employers should note that EBSA directs plan administrators to complete the notice by filling in the blanks with the information regarding their group health plan.  Use of the model election notice will be considered good faith compliance with COBRA election notice content requirements.  

A link to the updated COBRA model election notice is provided below. 

Ask For Help! 

It is completely understandable that employers are confused at this point as to what their responsibilities are under the ACA given all of the information and rumors swirling around it.  You don’t have to go it alone.  If you need guidance on your employer responsibilities under the ACA, we’re ready to help.  Just give us a call.   

Links to Notices 

The model notice for employers that offer a health plan to some or all employees is available at: 

The model notice for employers that do not offer a health plan is available at: 

The COBRA model election notice is available at:

Ann Kontner is a former senior human resources executive with vast experience in all facets of the HR field. She brings to S&J over 25 years of HR experience in corporate compliance, administrative management, staff development and executive leadership skills. She has worked for a wide range of employers including both public and privately held corporations, federal government contractors, and has experience working in both domestic and international markets.
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