As if the Affordable Care Act couldn’t get any more confusing, the Department of Labor (DOL) has released an FAQ with inconsistent messaging pertaining to the Oct. 1 Notice of Marketplace requirement for employers.
Dated Sept. 11, the FAQ implies that if employers do not wish to distribute the notices, they will not be penalized. One would think the same language would be updated accordingly in the DOL’s technical release, right? Wrong!
So the million-dollar question remains, “Do I need to notify my employees of exchanges?” The safe answer: most definitely, yes. Comply now or face the uncertainty of potential penalties.
Official statutes and the technical release issued by the DOL clearly state that employers “must provide” each employee with a written notice or face penalties, which could cost as much as $100 per day for non-compliance.
The FAQ is an informal document stating that no penalties will be imposed on employers who fail to provide notices on or before the Oct. 1 deadline; however, the FAQ also states that employers subject to the Fair Labor Standards Act still “should” provide the Notice of Marketplace to employees.
That leaves employers to translate “should” vs. “must” in separate documents released by the DOL. Experience with federal laws dictates that things stating “shall” or “must” have penalties or fines awaiting those who choose not to follow suit.
Therefore, the safe bet is to:
• go with the term “must,”
• comply with the Oct. 1 deadline and
• continue to notify employees within 14 days of hire.
Obviously, health care reform is quite complicated and it seems that even different departments within the U.S. government are not clearly defining employers’ responsibilities. However, it is in the best interest of every business to comply with the notice requirement, because if administered and sent properly, companies are not likely to face penalties.
