What Small Businesses Need to Do for Obamacare Before Oct. 1, 2013


Karen E. Klein September 03, 2013

The health insurance marketplaces created by the Affordable Care Act will open on Oct. 1. Most small employers—those with 50 or fewer full-time employees—are not required to offer health insurance coverage under the Affordable Care Act. Even businesses with more than 50 full-time employees have gotten a one-year reprieve from penalties if they don’t offer insurance. But all companies, regardless of size, are required to notify their employees about the Obamacare marketplaces.

The state and federal insurance exchanges are websites on which individuals and small businesses can shop for health plans. Though the deadline is less than a month away, many small businesses don’t know they have to notify employees, says Keith McMurdy, a benefits partner in the law firm of Fox Rothschild in New York. He has spoken to dozens of small business groups around the country in the past year and says most small business owners are unaware of the requirement or are under the misconception that it doesn’t apply to them because they’re too small to be governed by the health-care reform law’s mandate. McMurdy says it’s not clear how the requirement will be enforced, but penalties for businesses that don’t comply could reach $100 per worker per day.

“An employer with 10 employees typically says, ‘I don’t have to worry about it, because I don’t have to offer insurance.’ A lot of them are going to miss the deadline and be unpleasantly surprised when they do,” he says. The notification requirement applies to any business regulated under the Fair Labor Standards Act, which covers all companies with at least one employee and $500,000 in annual revenue. “There are no exceptions for small employers, which means nearly everybody has to get out this notice to their employees. We have been getting a lot of questions about it from small business owners,” says John Barlament, a lawyer in the employee benefits group at Quarles & Brady in Milwaukee.

The U.S. Department of Labor has posted information about the notification requirement on its website and has provided model notices that can be used both by employers who offer insurance (PDF) and by those who do not offer insurance(PDF).

The one- to three-page model notices can be downloaded, filled out, and printed, either for distribution in the office or for mailing to employees’ homes, McMurdy says. Employees who come on board after Oct. 1 must get the notice within 14 days of their start date with the company. “People ask me what’s the safest way to do this, and I always say, if the government gives you a model, use it. Or make yourself a comparable form, modified the way you need it, and use that. The safest route is to put it in the U.S. mail or follow the instructions for distributing it electronically,” he says. “The employer obligation is met at that point. I don’t see any requirement that you have to get signatures saying your employees have received it or maintain proof of the fact that you gave it out.”

The second and third pages of the model notices are optional, Barlament says. He is encouraging his small business clients to include the upper portion of page 2, which describes the insurance coverage provided by the company, but to leave off the rest of that page and page 3, which he feels could be confusing.

Sending out this notice is another in a long list of compliance issues for business owners around the ACA, McMurdy says, and most that he speaks with resent the extra work. However, he is starting to sense “general acceptance of the misery” and is hearing more employers say they expect to get used to the major provisions of the law when they go into effect next year. “It’s kind of like when COBRA came in and business owners said, ‘This will kill us, this is insane,’ and before long they got used to the idea.”