Earlier this year we released "A New Year's Snapshot on Health Care Reform: 5 Key Changes Affecting Employers in 2013." While many of the provisions of the Patient Protection and Affordable Care Act (PPACA), also referred to as "Obama Care," were postponed until at least 2015, several obligations remained intact. One such obligation is the mandatory notice regarding specific health care exchange information that employers governed by the Fair Labor Standards Act (FLSA), the federal minimum wage, overtime, and child labor laws, are required to provide to employees and new hires.1 The original March 1, 2013, deadline was postponed to October 1, 2013. The Department of Labor (DOL) has issued temporary guidance, as well as model notices, to assist employers with compliance.2Those model notices may be found here:
- For covered employers who offer a health plan to some or all employees:
http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf - For covered employers who do not offer a health plan:
http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf
The required notices are to be provided to each employee and new hire as of October 1, 2013. That means anyone currently on the payroll as of October 1, 2013, must receive the appropriate notice on or before that date. As of 2014 the DOL will consider an employer to have satisfied this requirement so long as any new hire receives the notice within 14 days of his/her start date.
Care should be exercised to ensure that the mandatory notice is delivered both timely and via approved means, and properly documented as such. Current DOL guidance states that the notice may be provided by hand delivery, by first class mail, or via electronic means, but the latter must meet the requirements of the DOL's electronic disclosure safe harbor provision.3 Those requirements generally limit this option to only those employees with work-related, regular, on premise e-mail access, and mandate: (a) special precautions to ensure delivery and receipt (for example, return-receipt features with periodic reviews to ensure bounce-backs are addressed), as well as adequate confidentiality protections; (b) inclusion of notice of the recipient's right to a paper copy upon request; and (c) actual delivery of paper copies in the event of such requests.
We will continue to keep you apprised of additional developments on this issue, as well as other legal issues that we think may affect your business. Of course, if you have a specific question about any of the requirements included in this article or individual compliance requirements applicable to your business, please consult your legal counsel, benefits advisors, and/or qualified tax professional.
Feel free to call us if we can be of assistance.
1. Helpful information about covered employers under the FLSA, is available online at:http://www.dol.gov/compliance/guide/minwage.htm. For a formal determination of whether the FLSA applies to your business, consult a qualified legal professional.
2. United States Department of Labor, Technical Release No. 2013-02, "Guidance on the Notice to Employees of Coverage Options under Fair Labor Standards Act §18B AND Updated Model Election Notice under the Consolidated Omnibus Budget Reconciliation Act of 1985," available online at:http://www.dol.gov/ebsa/newsroom/tr13-02.html.
3. 29 CFR 2520.104b-1c.
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