Update: Employer Notice Requirements under ObamaCare – it is not too late

October 16, 2013 Louis Barnett Barr

Although the IRS has announced that it will delay the effective date of the pay-or-play provisions of the Patient Protection and Affordable Care Act (“ACA” also known as “ObamaCare“), until January 1, 2015, employers are still required to give notice to employees about coverage available through state insurance exchanges by October 1, 2013. The Department of Labor has announced, however, that there is no fine or penalty for failing to give the notice at this stage, but it is still important to notify your employees as soon as possible. The government shutdown is not affecting the launch of the health insurance exchanges.

In May, the U.S. Department of Labor issued a technical release providing guidance and model forms to assist employers in fulfilling their one-time notice requirement obligations under ObamaCare to notify employees of their options under the new Health Insurance Marketplaces (exchanges) to choose and obtain private health insurance and possible eligibility for subsidized coverage that will open January 1, 2014.

Notification to current employees was required by October 1, 2013 and to all new hires within 14 days of their date of hire, starting on October 1, 2013, so if you have not yet complied with this requirement, you should do so as soon as possible.

Even though, under ObamaCare, the obligation to provide qualifying health coverage to employees or pay a penalty primarily applies only to “large employers” (employ an average of 50 or more full-time employees/full-time employee equivalents), this notification requirement is imposed on any employer that employs at least one employee and has at least $500,000 in annual dollar volume.

Two forms of model notices were provided. One is for use by employers that do not offer a health plan, and the other is for use by employers that offer a health plan to some or all employees.

The Model Notice for employers who OFFER a health plan to some or all employees is here.

The Model Notice for employers who do NOT offer a health plan is here.

The Department of Labor also issued a revised model COBRA Notice regarding the statutory obligation to allow an employee continuation of health insurance coverage following termination of employment or other loss of coverage, updated to include information about the new Marketplaces, so that individuals who lose regular group health plan coverage and are eligible for COBRA coverage will also be aware of their ability to buy coverage in the Marketplace (and possibly be eligible for a tax credit) in place of electing COBRA coverage.  The revised Notice also deletes the provisions relating to pre-existing condition exclusions which will no longer be permitted beginning January 1, 2014.

The COBRA Model election notice is here.

Although the model notices are helpful and they will fulfill your obligation, employees could find them confusing and are likely to have additional questions and concerns.  For assistance with ObamaCare requirements and all other employee benefits questions, please be in touch, contact details below.

Louis is the head of the Tax practice at SWA, with a strong focus on executive compensation and business formation and structuring as well as comprehensive experience in advising on mergers and acquisitions, especially involving start-ups.

Louis Barnett can be reached at 646 328 0783 or lbarr@swalegal.com

This SWA publication is intended for informational purposes and should not be regarded as legal advice. For more information about the issues included in this publication, please contact Louis Barnett Barr. The invitation to contact is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.