DOL Proposes New Electronic Disclosure Safe Harbor For ERISA Group Health Plans

On July 23, 2026, the U.S. Department of Labor (DOL) published a proposed rule to establish a new safe harbor for employers and other Employee Retirement Income Security Act (ERISA) plan administrators to electronically provide documents for their group health plans. Typically, the employer is the plan administrator for purposes of ERISA. Employers could satisfy most, if not all, of their disclosure obligations for their health plans by posting documents online and sending individuals a Notice of Internet Availability. If finalized, the proposed rule would provide a more modern and potentially less burdensome alternative to existing electronic disclosure rules for group health plans. However, the proposed rule is not without its flaws. The DOL is accepting comments on the proposed rule through Sept. 21, 2026.

Key Takeaways

1. Applicability: The proposed safe harbor applies only to group health plans, such as those providing medical, dental, vision and other health-related benefits. The safe harbor would not apply for other welfare benefits subject to ERISA, such as disability, life insurance or prepaid legal plans. The DOL has requested comments on whether it should expand the proposed safe harbor to other welfare benefits.
2. Additional Safe Harbor, Not a Replacement: The proposed safe harbor would supplement, not replace, the DOL's existing 2002 electronic disclosure safe harbor (the 2002 Safe Harbor). If finalized, employers could use the new safe harbor, continue relying on paper delivery or the 2002 Safe Harbor or employ a combination of delivery methods for their group health plans.
3. No Direct Email Delivery: Unlike the notice-and-access framework adopted for retirement plan disclosures in 2020 (the 2020 Retirement Safe Harbor), the new proposed safe harbor would not allow documents to be provided via email, including as an email attachment. Instead, documents would need to be posted online with individuals receiving a separate Notice of Internet Availability.

The proposed rule does not address whether an employer may rely on the safe harbor to furnish a “wrap” summary plan description that describes welfare benefits other than just group health plan benefits (e.g., disability, life insurance, etc.). Unless the DOL modifies the proposed rule, employers still may need to satisfy the 2002 Safe Harbor or otherwise compliantly provide the wrap summary plan description for their other welfare benefits.

Background

In 1997, the DOL first established a safe harbor allowing employers to disclose certain documents for their group health plans electronically. In 2002, the DOL expanded the safe harbor. The 2002 Safe Harbor has significant limitations. Generally, it permits electronic delivery only to employees who are "wired at work," meaning they have regular access to their employer's electronic information system for their job. Otherwise, employers must obtain individuals’ affirmative consent and meet other requirements under the 2002 Safe Harbor.

In 2020, the DOL adopted a more flexible notice-and-access framework for retirement plans—the 2020 Retirement Safe Harbor. The DOL’s current proposed rule would extend a similar framework to ERISA-covered group health plans.

Scope of the Proposed Rule

The proposed rule applies with respect to group health plan participants, covered dependents and other individuals entitled to receive group health plan documents who provide an email address or smartphone number to receive text messages (an electronic address). The proposal would permit adults aged 18 and over who are covered as dependent children to receive e-disclosures directly.

Any documents or notices that an employer needs to furnish under Title I of ERISA could be provided electronically under the proposed rule. These include summary plan descriptions, summaries of material modifications, summary annual reports and many other notices that need to be provided annually, upon a particular event or on request. Title I of ERISA has been amended over the years to incorporate notices required under other laws. Depending on the particulars of the employer and the type of group health plan, these might include notices required by COBRA, the Children's Health Insurance Program Reauthorization Act, the Affordable Care Act such as the summary of benefits and coverage, and others.

Using the Proposed Safe Harbor

To rely on the proposed safe harbor, an employer would need to:

• Obtain and maintain a valid electronic address for each individual;
• Furnish an initial notice regarding the default e-delivery and right to opt out;
• Provide a Notice of Internet Availability;
• Maintain a compliant website or other electronic repository (such as a mobile application); and
• Honor participants' rights to receive paper copies and opt out of e-delivery.

Electronic Addresses

The safe harbor would be available only for individuals who have a valid electronic address. Special rules apply when an employer-assigned electronic address may no longer be available. For example, if an employee receiving disclosures through an employer-assigned electronic address terminates employment but remains a participant (such as by electing COBRA continuation coverage), the employer would need to ensure that the employer-assigned address continues to be available or obtain a replacement electronic address. If the employer can do neither, it could no longer rely on the safe harbor.

The proposed rule also addresses invalid or inoperable electronic addresses. If a Notice of Internet Availability is returned as undeliverable or the employer becomes aware that an electronic address is invalid, the employer needs to address the problem. For example, the employer could use a secondary electronic address or obtain a new valid electronic address. If the issue cannot be resolved, the employer must treat the individual as having opted out of e-delivery and provide the document or notice on paper.

Initial Notice

Before relying on the safe harbor, an employer would need to furnish each individual with an initial notice explaining that covered documents will be provided electronically. The proposed rule would permit individuals already receiving electronic disclosures under the 2002 Safe Harbor to receive the initial notice electronically. Otherwise, the employer must provide the initial notice in paper form.

Notice of Internet Availability

A Notice of Internet Availability serves as the notice component of the notice-and-access framework. Under the proposed rule, a Notice of Internet Availability would need to be sent to the individual's electronic address to inform them that a document is available online. An employer generally could provide either a Notice of Internet Availability for each document, or a combined Notice of Internet Availability for multiple documents. Restrictions would apply to both approaches:

• Individual Notices of Internet Availability must be sent separately from other documents or disclosures.
• Combined Notices of Internet Availability generally may be used only for summary plan descriptions and other annual disclosures that do not require participant action by a particular deadline.
• Combined Notices also may be used for documents included with annual enrollment materials, provided the Notice of Internet Availability is given at the time of annual enrollment.

Importantly, the use of a Notice of Internet Availability, including a combined Notice of Internet Availability, does not alter any underlying disclosure deadline. Documents still must be made available online by the date they otherwise must be furnished.

Website Requirements

An employer must maintain a website or other electronic repository, such as a mobile application, that provides individuals with access to the documents. A health insurer could also maintain a website for disclosures for an insured group health plan. Likewise, a third-party administrator or other service provider could maintain a website for disclosures for a self-insured group health plan.

Documents that are provided online must:

• Be available by the date they otherwise must be furnished.
• Remain available for at least one year, or until superseded by a subsequent version.
• Be searchable, printable and capable of being permanently retained in electronic form.

The proposed rule does not alter any separate record-retention obligations that may apply under ERISA or other applicable laws.

Opt-Outs and Paper Copies

Employers would need to establish procedures to facilitate opt-out elections and requests for free paper copies. Individuals who opt out must receive the documents in paper form. The proposal does not limit the number of free paper copies that individuals may request, unlike the 2020 Retirement Safe Harbor.

Next Steps

Interested employers or other plan administrators may want to start evaluating how the proposed rule would fit within their existing processes. Steps to this end could include:

• Identifying disclosures that would be eligible for the proposed safe harbor.
• Determining how email addresses, mobile phone numbers and other electronic contact information are collected, where they are maintained and whether any other law limits their use for the proposed safe harbor.
• Reviewing or creating procedures for administering opt-out elections and paper-copy requests, dealing with invalid electronic addresses and ensuring document availability.
• Evaluating participant portals, websites and other electronic repositories.
• Coordinating with insurers, third-party administrators, COBRA administrators and other service providers regarding responsibility for document posting, Notice of Internet Availability distribution and compliance with any written disclosure arrangements.
• Reviewing procedures for participants who terminate employment, particularly where disclosures are tied to employer-assigned electronic addresses.
• Evaluating HIPAA and information security controls for participant portals and other electronic repositories to ensure that electronic disclosure practices align with privacy and security obligations.
• Assessing how the proposed safe harbor would interact with other disclosure obligations, such as for welfare benefits other than group health plan benefits and for retirement plans.