DOL Proposes Electronic Disclosure Safe Harbor for Health Plan Documents
A New E-Disclosure Framework for ERISA Group Health Plans
On July 23, the US Department of Labor published a proposed rule in the Federal Register that would create a new electronic disclosure safe harbor for ERISA-covered group health plan. If finalized, the proposal would give group health plan administrators an additional, optional pathway to deliver required ERISA disclosures electronically, alongside the existing 2002 e-disclosure safe harbor and the 2020 e-disclosure safe harbor available to retirement plan administrators.
The 2020 Retirement Plan and 2002 E-Disclosure Safe Harbors
In May 2020, the DOL issued final regulations permitting retirement plan administrators to deliver required ERISA disclosures electronically through an “opt-out” model under 29 C.F.R. § 2520.104b-31. Under the 2020 safe harbor, plan administrators may default to e-delivery for all participants so long as they satisfy a number of conditions, including providing an initial paper notice to participants of future e-delivery, sending an electronic notice of internet availability for each document, keeping documents posted on an accessible website for at least one year (or, if later, until superseded by a newer version), offering free paper copies on request, and honoring a global opt-out right, among other requirements.
In the 2020 rule, the DOL explained that this new e-delivery safe harbor was available only to retirement plans, though the DOL would consider extending it to health plans. Practically, this means that health plans have remained subject to a regulation from 2002, at 29 C.F.R. § 2520.104b-1(c), which permits electronic delivery only to individuals who are “wired at work” or who affirmatively consent to receive documents electronically. This is a standard that many plan sponsors have found impractical at scale. The proposed rule addresses this gap by creating a group health plan electronic disclosure safe harbor parallel to the 2020 safe harbor. Importantly, the proposed rule applies only to “group health plans” as defined under Section 733(a)(1) of ERISA, not to all welfare benefits. A plan administrator thus could rely on the 2026 safe harbor (once published) for programs providing medical care and for other benefits (such as vision and dental) in certain scenarios, but not for benefits such as sickness, accident, disability, death, or unemployment benefits, apprenticeships, training programs, or stand-alone vision or dental benefits.
Comparison: Health Plan Proposal vs. Retirement Plan Safe Harbor
The table below highlights key structural parallels and differences between the existing 2020 retirement plan safe harbor and the proposed health plan electronic disclosure framework.
| Feature | Retirement Plans (2020 Final Rule) | Health Plans (Proposed Rule) |
|---|---|---|
| Regulatory status | Final rule, codified at 29 C.F.R. § 2520.104b-31 | Proposed rule; comments are due 60 days after publication in the Federal Register. If finalized, the rule would take effect on the first day of the first calendar year following publication of the final rule |
| Plan types covered | Employee pension benefit plans only | ERISA-covered group health plans (not other welfare benefits such as sickness, accident, disability, death, or unemployment benefits, apprenticeships, training programs, or stand-alone dental or vision benefits) |
| Delivery model | Default electronic delivery via notice-and-access or direct email | Would mirror the retirement plan notice-and-access model (website posting plus a notice of internet availability), but would not include the direct email delivery alternative available to retirement plans |
| Covered documents | Documents required to be furnished under ERISA Title I, excluding on-request-only documents | Would cover any documents or information required to be furnished under ERISA Title I |
| Paper-copy and opt-out rights | Free paper copies and global opt-out required | Would include similar participant protections |
| Prior consent | Not required; default electronic delivery is permitted if safeguards are met | Would mirror the 2020 final rule default-delivery approach |
| Interaction with other health plan-related disclosure laws | Not applicable | Proposed rule covers only documents required under ERISA Title I; would not modify separate disclosure obligations under other health plan-related disclosure laws, including summary of benefits and coverage (“SBC”), group health plan transparency, cafeteria plan, health flexible spending account (“FSA”), and health spending account (“HSA”) disclosure requirements, and would not establish compliance with other federal or state laws (e.g., HIPAA) |
Key Takeaways for Plan Sponsors and Administrators
A long-awaited development: Plan sponsors operating both retirement and health plans have long sought a modernized framework for electronic delivery. The proposed rule is a significant step toward closing the regulatory gap that has required health plans to continue relying on the cumbersome 2002 consent-based standard. The DOL projects the proposed rule would raise the electronic delivery rate for group health-plan disclosures from an estimated 67.8% today to approximately 90%, generating an estimated $402 million in annual cost savings for plan sponsors.
Comment period ahead: Plan sponsors should review the proposed text carefully and consider submitting comments to the DOL by the deadline. The final rule’s requirements could change materially based on comments received.
Coordination with other disclosure regimes: Health plan disclosures already sit at the intersection of several separate electronic delivery frameworks, including the 2002 ERISA safe harbor discussed above, the SBC disclosure rules, the transparency in coverage disclosure rules, and the electronic delivery regulations for cafeteria plans, FSAs, and HSAs. The proposed rule does not consolidate or preempt these frameworks. It adds another optional pathway for delivering ERISA-required documents electronically. Plan sponsors should expect to map each recurring disclosure to the correct safe harbor (or combination of safe harbors) rather than assume a single, unified standard will govern once the proposed rule is finalized.
Operational planning: Even before a final rule is issued, plan sponsors and their administrators should begin evaluating their current electronic communication capabilities, collecting and verifying participant email addresses, and assessing whether existing vendor platforms (including those maintained by insurers or third-party administrators) can support a notice-and-access model for health plan documents. Because the proposed rule would not permit direct email delivery of sensitive disclosures, plan sponsors that rely on email delivery for retirement plan communications should not assume the same approach will be available for health plan documents.
Notable limitations and open questions: As noted, the proposal would not extend to other ERISA-covered welfare benefit plans, such as disability or life insurance plans, though the DOL has requested comments on whether it should. It also would not permit direct email delivery of covered documents, unlike the 2020 rule for retirement plans. Plan sponsors should watch whether commenters persuade the DOL to revisit either limitation before the rule is finalized.
We will continue to monitor developments as the rulemaking process progresses. Please contact the Mayer Brown benefits team with questions about how the proposal may affect your health plan disclosure practices.
