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Written By: Horace W. Green, Esq.

Buchman Provine Brothers Smith LLP

San Francisco, California

The Department of Labor ("DOL") recently issued guidance with respect to the issue of how and when employers (a) are to notify employees about the availability of state-run health insurance exchanges, and (b) provided sample notices for employers to provide to their employees. All employers must comply with this notification requirement whether or not the employer is obligated to provide health insurance or pay penalties.

There are two (2) sample notices. The sample notice for employers who offer health insurance may be found at:

www.dol.gov/ebsa/pdf/FLSAwithplans.pdf

The sample notice for employers who do not offer health insurance may be found at:

www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf

Employers are required to provide the requisite notices to all current employees by October 1, 2013. Employers are required to provide notice to each new employee at the time of hiring, beginning October 1, 2013. The guidance provides that notice will be considered to have been provided "at the time of hiring" if the notice is provided within fourteen (14) days of an employee's start date.

The notice must be provided in writing in a manner calculated to be understood by the average employee. It may be provided by first-class mail. Alternatively, it may be provided electronically, pursuant to Department of Labor regulation 29 CFR 2520.104b-1(c), which governs the delivery, format and content of notices, and the consent which recipients must give before notices such as this may be sent by electronic delivery.

In addition to these two (2) model notices, the DOL also published a new model COBRA election notice that incorporates the coverage options which eligible beneficiaries will have available to them through an exchange. Employers who use the model COBRA notice will be considered by the DOL to be in good faith compliance with COBRA's election notice requirements. The new model COBRA notice and the guidance may be found on the DOL's Affordable Care Act Website at:

www.dol.gov/ebsa/healthreform/index.html

Note: the anticipated unavailability of health insurance exchanges in some states may result in a modification or delay of the guidance. However, employers should be prepared to provide the required notice on or before October 1, 2013.

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