All employers subject to the Fair Labor Standards Act are required by the Department of Labor (“DOL”) to give notice to their employees regarding the Affordable Care Act (“ACA”).  The DOL Techncial Release 2013-02 describes the notice to advise employees of their health insurance options.  The notice must be given to all employees, regardless whether they participate in the health insurance plan or even if the employer does not provide health insurance.  The notice is to be given to all full and part time employees.

Employers are required to provide the notice to each new employee at the time of hiring beginning October 1, 2013.  For 2014, a notice given at the time of hiring is appropriate if it is provided within 14 days of the employee’s start date.  All current employees are to be given the notice no later than October 1, 2013. 

The notice must be provided in writing in a manner calculated to be understood by the average employee.  The notice may be distributed by: 

• First class mail
• Hand delivery
• Payroll stuffer
• Electronic delivery such as email

Form and Content of the Notice.  The written notice must include the following elements:

1.         Inform the employee of the health insurance marketplace (the new competitive private health insurance market created by the ACA), including the description of the services provided by the marketplace in the manner in which the employee may contact the marketplace to request assistance;

2.         If the employer plans share of the total allowed costs of benefits provided under the plan is less than 60% of such costs, the notice must specify that the employee may be eligible for a premium tax credit under Section 36B of the Internal Revenue Code if the employee purchases the qualified plan through the marketplace; and

3.         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.  There are 2 model notices prepared by the DOL.  One notice is for employers that offer coverage to some or all of its employees and one for employers who do not offer coverage.  The model notices can be found at the Department of Labor’s website: www.dol.gov/ebsa/healthreform.