Notice of Coverage Options-Risk in not Providing?

[Chaz]

Obamacare added a new section 18B to the FLSA, requiring employers that are subject to the FLSA to send out a notice of the Health Insurance Marketplaces to all employees. This notice is due on October 1.

The Department of Labor recently issued an FAQ stating that there is no fine or penalty under the law for failing to provide the notice.

Can anyone provide any insight as to whether there any other employment-type laws or any litigation risk that an employer should be concerned about if it does not send out the notices or only sends the notices to some employees?

[Bill Presson]

Obamacare added a new section 18B to the FLSA, requiring employers that are subject to the FLSA to send out a notice of the Health Insurance Marketplaces to all employees. This notice is due on October 1.

The Department of Labor recently issued an FAQ stating that there is no fine or penalty under the law for failing to provide the notice.

Can anyone provide any insight as to whether there any other employment-type laws or any litigation risk that an employer should be concerned about if it does not send out the notices or only sends the notices to some employees?

Not sure this helps, but we're telling our corporate clients to go ahead and provide the notice to comply with the regulation. But rely on the recent FAQ in case they miss someone or the notice somehow doesn't 100% comply.

[leevena]

We are doing the same. Our concern is based on a conversation that some legal people had with the compliance people. They asked the compliance people if there would be any other consequences to the group if they did not provide the notice. The answer was not a definitive "no" to that, so some of are a little skeptical. For instance, could the DOL come after a group and say that ERISA requries disclosures and that notice was not provided, therefore you are in violation of your fiduciary responsibility?

[jpod]

The only thing DOL said was that it wouldn't assess penalties, but it went on to say that employers "should" distribute the notice. I think that's because the law requires the notice to be distributed, and there is a private cause of action available to employees under FLSA which could extend to the failure to distribute the notice.