Chapter 5:
Employee - Federal Notice Requirements for Employers

Updated as of June 2006


Insurance

  • COBRA: Employers covered by Federal COBRA (20 or more employees) must give covered employees and dependents written notice of their rights to extend their group health plan coverage(s): (1) at the point of coverage (26 CFR § 54.4980B-1); and (2) at the time of a COBRA qualifying event (26 CFR § 54.4980B-6).

  • HIPAA: The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Title I, requires most employers (plans covering two or more employees at the beginning of a plan year) to provide certification of prior health coverage to all individuals (employees and covered dependents) who lose group health plan coverage (26 CFR § 54.9801-5).

  • HIPAA: The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Title II, requires employers to provide "Privacy Notices" to employees concerning Protected Health Information (PHI); and, generally, to provide a "Release of Medical Information" form to employees when the employer assists the employee with issues related to PHI, other than enrollment.


Background Checking Requirements

  • FCRA: Before obtaining an applicant's or employee's background check from an agency that regularly conducts background checks, the employer must ensure the individual has received an authorization and disclosure letter. If the employer anticipates using the results of a background check to take an adverse action, it must also send a pre-adverse action disclosure that includes a summary of the applicant's rights under the FCRA. When the employer finally takes adverse action against an individual, it must, in an adverse action notice (orally or in writing), inform the employee of the agency's information, that the agency did not decide to take the adverse action, and a notice that the individual may dispute the information (16 CFR § 600).


Employee Polygraph Protection Act

  • At least 48 hours prior to an employer's administration of a polygraph test the employee must receive from the employer a statement describing the particulars of the exam. No polygraph test must be permitted until the examinee has read and signed a notice informing him that he cannot be required to take the test as a condition of employment (29 CFR § 801.23).


Leave(s) of Absence (LOA)

  • FMLA: Employers must give employees notice in writing of their rights under the FMLA. If an employer has an employee handbook, they must meet this requirement by posting the notice in the handbook (29 CFR § 825.301). Employers must also give written designation of FMLA leave to eligible employees when designating a leave as FMLA-qualifying. Initial notice may be oral but must be followed by a written confirmation of the leave, generally by the following payday (29 CFR § 825.208).


Summary Plan Descriptions (SPD's)

  • All private employers must provide all eligible employees, at the time of eligibility, a Summary Plan Description (SPD) regarding their health and welfare benefits that are covered under ERISA. The SPD can either be a stand-alone document or can be included in the employee handbook (29 CFR § 2520).

Plant Closings and Mass Layoffs

WARN: Employers with 100 or more employees must provide 60 days advance notice of either (1) a plant closing that causes 50 or more employees to experience an employment loss or (2) a mass layoff impacting at least 50 employees and at least 33 percent of the workforce, or more than 500 employees regardless of percentage of the workforce (29 USC § 639). The notice must be sent not only to affected employees (or, if represented, officials of the local union) but also the state dislocated worker unit and the chief elected official of affected local governments (29 CFR § 639.6). The notice must also contain specific information required by federal regulation (29 CFR § 639.7).

 

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