**UPDATE** RE: Guidance of the Employee Notice of Exchange Options

The recently released temporary guidance has left many of you with questions and the Department of Labor has issued a response to the many questions it received regarding the temporary Fair Labor Standards Act (FLSA) and model notices.

Here is what the Department of Labor said regarding the exchange notices that were slated for delivery this past March:

"The Department is issuing this temporary guidance and model notice in advance of the expected timeframe announced in the guidance because, since the issuance of the guidance, the Department has received several requests from employers for a model notice on an earlier timeframe so that they may be able to inform their employees now about the upcoming coverage options through the Marketplace. Therefore, employers are permitted to use the model notice and/or rely on this temporary guidance prior to the applicability date stated below to inform their employees earlier."

As many of you have since realized, there are a number of fill-in-the -blank sections that cannot be answered just yet. Some of them may not be able to be answered by October 1 , when employers are supposed to deliver the notices.

"Our advice at this time is:  Don't do anything with this Temporary Guidance and notice unless you must! Instead use this guidance and the time until formal guidance is issued to do the following: 

 

1.   Determine if the employer is subject to FLSA and required to provide the notice- not all employers will have to comply.

2.   Assess which options for distribution will be cost effective or are available to the employer. There are options, including electronic options approved by the DOL, for other benefits communications.

3.   Understand the types of information that will be required.

4.        Determine who will respond to employee inquiries about the notice. These notices will raise questions from employees and we expect there will be a lot of them.

5.   Develop a timeline for notice delivery. This should also include an assessment of printing and mailing costs if notices will be mailed.

6.   Consider whether the model notice will work for an employer or engage a labor law attorney to draft a customized notice.