Employers must begin to take steps now to notify their employees about the possibility of purchasing private health insurance through healthcare exchanges (“Notice”). This new notice requirement applies to virtually all employers (regardless of the number of employees) and requires those employers to provide Notice to virtually all of their employees. Employers are encouraged to be aware of the requirements of this new development.

Affected Employers: With some very limited exceptions, all employers (including those who have less than 50 full-time/full-time equivalent employees) are required to provide this Notice, meaning that many employers that are not subject to the “pay-to-play” provisions of Healthcare Reform are required to provide this Notice.

Relevant Employees: Notices must be provided to both active part-time and full-time employees regardless of whether the employees are covered under their employer’s health plan.

Content of Notice: The Notice must explain that employees can purchase health insurance from private insurance companies through a health insurance exchange known as the Health Insurance Marketplace (“Marketplace”). The Notice must also describe the services provided by the Marketplace and explain how an employee can contact the Marketplace.

Timing of Notice: Employers were originally required to provide active employees with notice of the Marketplace by March 1, 2013; however, the DOL pushed back this deadline to October 1, 2013, in order to allow the Marketplace more time to become fully operational. For employees hired on and after October 1, 2013, notice of the Marketplace must be provided within 14 days of hire. This 14-day notification period for new hires is in effect from October 1, 2013 through 2014 but may be changed in the future.

Delivery of Notice: The Notice must be provided in writing and may be delivered through first-class mail or through electronic delivery.

Format of Notice: To assist employers with providing this Notice, the DOL has released two template forms: one for employers who do not offer a health plan and one for employers who offer a health plan to some or all of its employees. Employers should modify the template to suit their needs. As well, the DOL has issued a model COBRA election notice for employers to use to make qualified beneficiaries aware of coverage options available through the Marketplace. These model notices can be found at: http://www.dol.gov/ebsa/healthreform/index.html.

Now What? While this is temporary guidance, the DOL has made it clear that employers should rely on this guidance for now. Therefore, employers need to take steps to begin to prepare and distribute Notices based on this guidance. Attorneys in Buchanan Ingersoll & Rooney’s ERISA and Employee Benefits group have significant experience ensuring compliance with ERISA and the Affordable Care Act and are available to assist you with this Notice requirement and all other aspects of the Affordable Care Act.