What is the health insurance marketplace notice requirement under the Affordable Care Act (ACA)?

Under the Affordable Care Act (ACA), employers covered by the Fair Labor Standards Act (FLSA) are required to provide a notice to employees about the health insurance marketplace/exchanges of the state(s) in which they operate. Employers have been required to provide this notice to current employees and new employees at the time of hire since Oct. 1, 2013. Employers are not required to provide a separate notice to dependents or other individuals who are or may become eligible for coverage under the plan but who are not employees.

New hires must receive the notice within 14 days of the employee's start date. The notice may be distributed electronically or by hard copy. There is no requirement to obtain an employee's signature; however, an employer may want to track delivery and receipt of the notice.

The notice must inform the employee:

• Of the existence of the marketplace (referred to in the statute as the exchange) including a description of the services provided by the marketplace, and the manner in which the employee may contact the marketplace to request assistance.
• 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 the Marketplace.
• If the employee purchases a qualified health plan through the Marketplace, 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 U.S. Department of Labor has two model notices to help employers comply. One model is for employers that do not offer a health plan and another model is for employers that offer a health plan to some or all employees.

Employers may use one of these models, as applicable, or a modified version. More compliance assistance information is available in a Technical Release issued by the U.S. Department of Labor.