Obamacare’s October 1, 2013 Employee Notification -- En Espanola
There is nothing in the Patient Protection and Affordable Care Act, commonly called “Obamacare,” that requires employers to provide Spanish-language notifications to workers about the availability of their state insurance Exchange as part of the mandated Notice that is due to go out by October 1, 2013. This is a remarkable omission.
In many states, election ballots must be provided in Spanish, written driver’s tests are provided in Spanish, and throughout the government’s infrastructure, there have been widespread effort over the past 25 years requiring both employers and government agencies to provide bilingual information for workers and citizens who are native Spanish-language speakers.
Oddly, while it is not required, the government created a model notice in Spanish. I advise my clients not to use the model notice since it offers far more information that what is required by law, yet the idea of providing the exchange Notice in Spanish is a good one for those employers who now provide Spanish-language materials to their employees.
Obamacare presents a veritable nightmare of incomplete or conflicting requirements regarding various kinds of compliance. This opens the door to future challenges – if not from the government – then from employees and employee-advocates looking for ways to cash in on an employer’s failure-to-comply.
One such pitfall could involve suits brought by Spanish-speaking employees who contend that, while not specifically required, notification in Spanish could reasonably be expected to employees not fluent in English, and that failure to provide such notification is in violation of the spirit of the requirement.
When you set out to notify your employees about their state Exchange, we recommend the following:
1. Hand-deliver the notification to each employee and get a signature indicating receipt of this required notification
2. Provide the employee with notification in both English and Spanish
3. Use a more employer-friendly notice than what is available on healthcare.gov
4. Ensure that the notification is complete, accurate and in compliance
5. Offer one-on-one counseling to any employee who requests more information or asks for help in understanding what this all means
6. Complete the notification process on or before October 1, 2013
7. Use the right Notice
If you follow these steps, you will minimize the chances that your company will be deemed non-compliant by the Department of Labor, the IRS, or a court of law.
I advise my clients not to use the model notice provided by the Department of Labor on their website, and instead use a more employer-friendly version. The version we recommend has all the required information, yet none of the “extra” data that the model notice asks employers to provide.
We have a website featuring a modified notice at www.obamacarenotices.com. Feel free to visit, and see what is actually required in the Notice.