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Log In / Register | Jun 23, 2018

DOL Delays Requirement that Employers Provide Employees Notice under Affordable Care Act

As a further indication of the yet to be written regulations under the Affordable Care Act (“ACA”), the United States Department of Labor (“DOL”) has announced employers will not be required to comply with the original March 1, 2013 deadline to give notice to employees of health insurance exchanges (“Exchanges”). The announcement gives employers a little breathing room and a brief respite from the increased paperwork and administrative costs until later in the year.  Open enrollment for the Exchanges for 2014 is currently slated to begin in Fall 2013.

Section 18B of the Fair Labor Standards Act (FLSA), as added by the ACA, generally provides that, in accordance with regulations promulgated by the Secretary of Labor, an applicable employer must provide each employee at the time of hiring (or with respect to current employees, a written notice:

  1. Informing the employee of the existence of Exchanges including a description of the services provided by the Exchanges, and the manner in which the employee may contact Exchanges to request assistance;
  2. If the employer plan's share of the total allowed costs of benefits provided under the plan is less than 60 percent of such costs, that the employee may be eligible for a premium tax credit under section 36B of the Internal Revenue Code if the employee purchases a qualified health plan through an Exchange; and
  3. If the employee purchases a qualified health plan through an Exchange, 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.

The reason the March 1, 2013 notice deadline has been scrapped is because the applicable law provides that the notice requirements must be carried out “[i]n accordance with regulations promulgated by the Secretary [of Labor].”  Because the applicable regulations have yet to be issued by the DOL, the Internal Revenue Service or Health and Human Services, there is no way employers could comply by the original notice deadline, and the DOL’s announcement simple recognizes that reality.  In its announcement, the DOL expects that the timing for distribution of notices will be the late Summer or early Fall of 2013, which will coordinate with the scheduled open enrollment period for Exchanges.

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About Mark Fijman

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Mark Fijman specializes in labor and employment issues relating to the restaurant and hospitality industry, including Fair Labor Standards Act ("FLSA") compliance. He is an attorney in the Labor and Employment Section of law firm Phelps Dunbar, LLP’s Jackson, Mississippi office. He can be contacted at (601) 360-9716 or

Fijman represents and advises employers regarding federal and state employment laws dealing with race, age, disability, gender, national origin and religious discrimination and in administrative proceedings before the Equal Employment Opportunity Commission. His practice includes representing employers seeking to enforce non-competition/non-solicitation agreements and pursuing injunctive relief for improper use of proprietary information.He routinely counsels on issues ranging from overtime questions to discipline and termination decisions. Direct phone: (601) 360-9716.  Phelps Dunbar, LLP has offices in New Orleans, LA, Baton Rouge, LA, Houston, TX, Tampa, FL, Mobile, AL, Raleigh, NC, Jackson, MS, Gulfport, MS, Tupelo, MS and London, England.

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