Department of Labor Releases Proposed Rules to Ease Electronic Disclosure Requirements for Plan Sponsors

As a reminder, ERISA requires employer plan sponsors/administrators to deliver ERISA required documents and other notices (hereinafter referred to collectively as “covered documents¹”) to plan participants and beneficiaries in a manner “reasonably calculated to ensure actual receipt.” Two safe harbor rules under ERISA exist that would allow an employer to deliver these required documents through electronic means. The first safe harbor released in 2002 applied to both pension/retirement plans and group health plans, only allowing ERISA required documents to be furnished electronically to plan participants/beneficiaries (hereinafter referred to as “covered individuals²”) if either: 1) they had access to a computer as part of their daily job duties; or 2) they affirmatively consented to electronic delivery of such documents. The second safe harbor rule allowing for electronic delivery of documents was released in 2020 (with additional rules released in February 2026), but this safe harbor was limited to pension/retirement plans.

On July 22, 2026, the Department of Labor (DOL) Employee Benefits Security Administration released proposed rules, titled “Electronic Disclosure by Group Health Plans Under ERISA” which aim to apply rules similar to the 2020 safe harbor rules for pension/retirement plans to group health plans. While the 2002 safe harbor still applies to group health plans, this new safe harbor would provide group health plans an additional safe harbor for delivering certain required documents (e.g., SPDs, SARs, certain annual notices, SMMs, etc.) to covered individuals using electronic media. Specifically, plan sponsors/administrators would be permitted to post covered documents on a website and provide a covered individual with a notice (referred to as a Notice of Internet Availability as detailed below) describing the website where the covered documents have been posted, as opposed to having to furnish each covered document to every covered individual. It is important to note that the new safe harbor rule does not apply to ERISA welfare benefit plans (e.g., life and disability plans).

Proposed Rules: Electronic Disclosure by Group Health Plans Under ERISA

Initial Notification

Under the proposed rules, before a plan sponsor/administrator may rely on this new safe harbor, the plan sponsor/administrator must distribute a notice to each individual stating that covered documents will be furnished electronically and identifying the individual’s electronic address (e.g., email or smartphone) to where they will be receiving notification of the covered document posting. There are additional content requirements for the initial notice, including, but not limited to, notifying the individual where they can access the documents on the website, that they can receive a paper version of the notice free of charge, and their right to opt out of electronic delivery under the new safe harbor. It would appear under these proposed rules, if they are finalized, that a plan sponsor/administrator could automatically opt-in the participant/beneficiary to receive electronic delivery of covered documents under this safe harbor, but the plan sponsor/administrator would be required to notify the individual of their ability to opt-out of such electronic delivery. Lastly, the rules propose to allow the plan sponsor/administrator to deliver this initial notice electronically subject to the above described 2002 safe harbor rule (rather than provide a paper copy of this initial notice) to covered individuals who were previously receiving ERISA disclosures under the 2002 safe harbor rule.  

Notice of Internet Availability

A main component of the new proposed safe harbor rule is the ability of the plan sponsor/administrator to post a covered document on a qualifying website and furnish a Notice of Internet Availability (NOIA) to covered individuals instead of directly providing the covered document to each covered individual.

There are numerous requirements associated with the NOIA, as further described below:

Contents: The proposed rules list a variety of content requirements within the NOIA, including the following:

1. A conspicuous statement (e.g., subject line, title) that includes the words “Disclosure About Your Health Plan” and the words in the body of the NOIA to say: “Important information about your health plan is now available. Please review this information.”

2. Identification of the covered document by title/name (e.g., Summary Annual Report) and a short description of the relevance of the document if the title of the document is not sufficient to describe such document.

3. The website address, or a hyperlink to the website, where the covered document can be found. The link can either directly lead the covered individual to the covered document(s) or a login page with a prominent link to the covered document (e.g., an intranet site).

4. A statement explaining the process for a recipient to obtain a free paper copy of the covered document.

5. An explanation of the process for the covered individual to discontinue electronic communications and begin receiving covered documents exclusively in paper format at no cost.

6. A statement explaining that the covered document's online availability may be limited to one (1) year, or longer if necessary, until a newer version of the document replaces it.

7. The telephone number of the administrator or representative of the group health plan.

Timing: The timing of when a NOIA must be furnished under the proposed rules depends on when the covered document is required to be distributed and whether the NOIA covers one or multiple combined documents.

1. As a general rule, a NOIA for a covered document must be furnished at the time the covered document is made available on the website (and such document should be posted by its due date under ERISA or the applicable regulation).

2. If the plan sponsor/administrator uses a combined NOIA for more than one covered document, the NOIA must be furnished to covered individuals each plan year. If the NOIA is furnished prior to the effective date of the plan year (e.g., as a part of open enrollment), then the NOIA may be delivered up to 14 months following the date of the delivery of the prior plan year’s NOIA.

3. The proposed rules list certain types of covered documents (e.g., SPD, documents that do not require participant action, documents only required to be furnished annually, etc.) that would allow a plan sponsor/administrator to utilize and distribute one annual NOIA that combines those covered documents.

4. For covered documents that must be furnished upon request by a covered individual, if such document has been made available on the website, the NOIA is only required to be furnished to that individual at the time they request such document.

Other NOIA Rules: The proposed rules list other requirements applicable to the NOIA, as follows:

1. If a covered individual requests a paper copy of the covered document, the plan sponsor/administrator may not charge for the paper copy, regardless of the amount of paper copies requested.

2. The NOIA can be furnished to covered individuals electronically, so long as they have provided an electronic address to the plan administrator or their agent. The NOIA must be furnished separately from other documents or disclosures and be written in a manner that an average plan participant can understand.

Rules Surrounding the Website where Covered Documents are Posted

The new safe harbor rule also describes how covered documents must be posted on a website. Notably, this proposed safe harbor does not cover delivery of the covered document by email (only the initial notice and NOIA may be distributed by email). As it relates to the website, the proposed rules state that the plan sponsor/administrator must ensure the website to which the covered documents are posted is established, accessible, and maintained. Plan administrators are permitted to rely on plan service providers or third parties to maintain the website. Further, plan administrators must ensure that covered documents remain available on the website until at least one (1) year after publication or, if later, until a revised version replaces the document. Additional rules applicable to the website can be found in the proposed rules.

Separation from Employment

According to the proposed rules, when an employee terminates employment, plan administrators must take reasonable steps to ensure the employee can continue receiving electronic disclosures (including providing ongoing access to an intranet website) by maintaining a valid electronic address or obtaining a new one after the employee is terminated.

Action Plan

At this time, plan sponsors/administrators need not take action and should not rely on the new safe harbor as these are only proposed rules. Plan sponsors/administrators may continue to rely on the 2002 safe harbor rule or deliver any covered documents by mail or hand delivery to covered individuals. However, if a plan sponsor/administrator would like to prepare for the potential final rules, they should consider beginning the process of collecting information about the appropriate electronic addresses (e.g., email or smartphone) for each employee to which they would like to deliver covered documents under the new safe harbor rule. For a direct link to the bulletin and the proposed rules released by the DOL, click here.

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