Beginning Jan. 1, 2014, individuals and employees of small businesses will have access to health insurance coverage through the Health Insurance Marketplace (or Exchange). Open enrollment for coverage through the Marketplace begins Oct. 1, 2013. Section 18B of the Fair Labor Standards Act (FLSA), as added by section 1512 of the Affordable Care Act (ACA), requires employers to provide all new hires and current employees with a written notice about the Marketplace. 

On May 8, the U.S. Department of Labor (DOL) issued a technical release containing guidance on the Marketplace notice requirement. This guidance will remain in effect until DOL promulgates regulations or other guidance. Future regulations or other guidance on these issues will provide employers with adequate time to comply with any additional or modified requirements.

Under the guidance, employers are required to provide a notice to each new employee at the time of hiring beginning Oct. 1, 2013. For 2014, the DOL will consider a notice to be provided at the time of hiring if the notice is provided within 14 days of an employee’s start date.

With respect to employees that are current employees before Oct. 1, 2013, employers are required to provide the notice no later than Oct. 1, 2013.

The requirement to provide a notice to employees of coverage options applies to employers to which the FLSA applies. Employers must provide a notice of coverage options to each employee, regardless of plan enrollment status (if applicable) or of part-time or full-time status.

DOL has provided model notices for employers that do offer health plans for some or all employees and for employers who do not offer a health plan. Employers may use one of these models, as applicable, or a modified version, provided the notice meets the content requirements.

The DOL website also includes a model COBRA continuation coverage election notice and a tool to determine applicability of FLSA.