The Department of Labor (“DOL”) recently issued proposed regulations that would establish an additional safe harbor allowing administrators of ERISA-covered group health plans to electronically furnish required plan disclosures to participants and beneficiaries. The proposal would largely extend to group health plans the “notice-and-access” electronic disclosure framework that has been available to pension benefit plans since 2020.
Under the proposal, a group health plan administrator could satisfy ERISA’s disclosure requirements by posting required documents on a website and electronically notifying participants and beneficiaries that the documents are available. This approach could significantly expand the population that may receive group health plan disclosures electronically without requiring plan administrators to determine whether each individual is “wired at work” or obtain affirmative consent to electronic delivery under the existing 2002 electronic disclosure safe harbor.
Importantly, the new safe harbor is only a proposal at this time. The existing 2002 safe harbor rule remains in effect, and employers and plan administrators should not begin relying on the proposed safe harbor unless and until final regulations become applicable. The DOL is accepting comments on the proposal through September 21, 2026.
A New “Notice-and-Access” Option for Group Health Plans
Under the existing 2002 electronic disclosure safe harbor, plan administrators may electronically furnish ERISA disclosures to employees without their affirmative consent if the employees have effective access to the employer’s electronic information system as an integral part of their job duties. Participants and beneficiaries who do not fall within this “wired at work” category must affirmatively consent to electronic delivery.
The proposed safe harbor would provide group health plans with an additional and more flexible option. Similar to the electronic disclosure safe harbor adopted for pension plans in 2020, the proposed safe harbor would permit electronic delivery to become the default method for a covered individual who has an appropriate electronic address, while preserving the individual’s right to request paper disclosures or opt out of electronic delivery entirely.
The proposed safe harbor would be optional. The existing 2002 safe harbor would remain available, and plan administrators could continue furnishing disclosures by paper or another permissible method rather than adopting the new notice-and-access approach.
Practical Takeaways for Employers
The proposal remains optional and is not yet effective. Employers should therefore continue following existing compliant disclosure procedures while the rulemaking process continues.
Warner Has You Covered
If you would like assistance evaluating your current electronic disclosure practices, determining how the proposed safe harbor could affect your group health plans or monitoring developments as the DOL moves toward final regulations, please contact Stephanie Grant, De’Andre Robbins or your Warner attorney.
