DOL proposed rule would ease e-delivery by ERISA group health plans 

The Department of Labor announced a proposed rule that would make it easier for ERISA-covered group health plans to deliver required notices and documents electronically. The proposal creates an optional “notice and access” safe harbor for electronic delivery, similar to a safe harbor available for retirement plans since 2020. Plan members could still request paper copies of specific documents or opt out of electronic delivery entirely. Comments are due September 21, 2026. If finalized as proposed, the new safe harbor would be available starting on the first day of the plan year after the final rule is published.

Group health plans only. The proposal applies to ERISA-covered group health plans only, not to other welfare benefit plans such as sickness, accident, or prepaid legal benefit programs. 

Covered individuals. The new safe harbor would apply to “covered individuals,” meaning participants, beneficiaries, or other people entitled to covered documents who provide an electronic address. Acceptable electronic addresses include, but appear not to be limited to, personal and work email addresses and smartphone numbers.

Covered documents. The new safe harbor would cover a broad range of “covered documents,” meaning ERISA Title I group health plan disclosures. This includes documents that must be furnished automatically, as well as those provided only on request. Examples include common ERISA documents such as SPDs and claim-related disclosures, as well as many notices specific to group health plans such as summaries of benefits and coverage, COBRA notices, and HIPAA special enrollment rights notices.

Initial notice. Before relying on the new safe harbor, a plan administrator must send each individual an initial paper notice explaining the new electronic delivery approach. Participants already receiving electronic disclosures under the 2002 electronic delivery safe harbor may receive the initial notice electronically.

Notice of internet availability. For each covered document, each covered individual must be provided with a NOIA identifying the document and supplying an internet address or hyperlink to the document for ready access. The NOIA generally must be delivered when a covered document is made available on a website. For documents available only on request, a NOIA is required after the request is made and the document is uploaded on the website. The proposal includes detailed content, appearance, and delivery requirements for NOIAs, but no model notice. 

The proposal also permits certain annual combined NOIAs, delivered not more than 14 months after the prior year’s notice. A combined notice could cover SPDs, annual disclosures, documents that must be included with annual enrollment materials or materials describing plan benefits, and other covered documents if approved by the Secretary of Labor or Treasury. 

Website standards. The plan administrator must maintain a compliant website for covered individuals to access documents. “Website” is broadly defined to include other repositories for document access like mobile apps. The proposal does not require that the website be publicly available. The website must make each document available by the applicable ERISA deadline, for at least one year or until superseded, and present each document in a way that is understandable to the average plan participant. The website must allow users to retain or print the document. It must also support searchable access and protect the confidentiality of personal information.

Paper copies and opt outs. Finally, the proposal requires reasonable procedures for paper copies and opt-outs. Covered individuals must be able to request paper versions and opt out of electronic delivery for all covered documents. 

Next steps. Plans aren’t required to take any action in response to the DOL’s proposals. Plans can’t rely on the proposed safe harbor until the DOL issues final rules, and the proposed safe harbor is optional. Plan sponsors would not be forced to switch to the new method; they could continue to use paper or use the existing 2002 electronic delivery safe harbor.

However, in addition to keeping an eye out for final rules, many plan sponsors may want to begin considering how they might utilize the proposed safe harbor to streamline plan administration and, hopefully, reduce plan costs:

• Consider which notices and disclosures could be delivered under the new safe harbor. Note that, if finalized as proposed, plan sponsors may be unable to fully utilize the new safe harbor to distribute group health plan disclosures that are combined with non-health benefits (for example, a wrap SPD describing a range of ERISA-covered welfare benefits).
• Compare existing electronic document storage with the proposal’s website standards, and identify any changes that would be required.
• Consider how the notice-and-access safe harbor could be operationalized. There will be administrative steps to take advantage of the new safe harbor — including drafting notices, collecting electronic addresses, and managing opt-outs.
• Ask vendors what assistance they can provide, and include language in vendor contracts that ensures assistance when final rules are issued.
• Review comments submitted by stakeholders, and consider whether to comment on the DOL’s proposal.