New electronic disclosure rule for group health plan notices proposed by DOL

Background

ERISA requires that disclosures be provided to participants in a manner that is “reasonably calculated” to result in actual receipt and protects confidential personal information. The DOL previously established an electronic delivery safe harbor in 2002, but this safe harbor only allows electronic delivery to individuals who are “wired at work” (those who access the employer’s electronic information system as an integral part of their duties) or those who affirmatively consent to receive documents electronically. This left a gap for employers who have employees that do not satisfy either safe harbor condition. 

Proposed Rule

The proposed rule provides an alternative method for electronic disclosure of “covered documents” to “covered individuals”: 

• Covered documents are any group health plan documents or information that the administrator is required to furnish under Title I of ERISA. In a departure from the 2020 pension plan safe harbor, the proposed rule extends this electronic delivery option to documents that a plan is only required to furnish upon request. Note that the proposed rule does not apply to all welfare plans, just to group health plans. Benefits such as disability and life insurance are not covered.
• Covered individuals are participants, beneficiaries, or other individuals entitled to the covered documents who have provided an electronic address (such as an email address or smartphone number) where they can receive a written Notice of Internet Availability (NOIA). An employer-assigned email address also satisfies this requirement. Dependent children who have attained age 18 may be treated as covered individuals.

The administrator must use the covered individual’s electronic address to provide a Notice of Internet Availability (NOIA), and the covered documents must be posted to a website. The NOIA and the website are discussed in more detail below. 

Notice of Internet Availability

Generally, a separate NOIA must be delivered for each document posted to the website. However, the proposed rule allows a combined NOIA to be provided for one or more of the following: (1) summary plan description, (2) other documents required to be furnished annually (rather than upon the occurrence of a specific event), (3) annual enrollment materials, and (4) other documents specifically permitted by the DOL and the Internal Revenue Service. In addition, the NOIA must satisfy the following requirements: 

• Timing: The NOIA must be furnished at the time the covered document is made available on the website. If providing a combined NOIA, then the administrator must furnish the combined NOIA available (1) each plan year, and (2) no more than 14 months following the date that the NOIA for the prior plan year was provided. 
• Content: The NOIA must:
  • Include a prominent statement (e.g., subject line) that says “Disclosure About Your Health Plan” and a statement that reads “Important information about your health plan is now available. Please review this information;”
  • Identify the covered document by name and briefly describe it, if necessary;
  • Contain the website address or a link to the website where the covered document is available. The website address or link should either lead the individual directly to the covered document or, if the individual needs to login first, link to the covered document immediately after logging in;
  • Contain statements regarding the right to: (1) request and obtain a paper copy of the covered document free of charge, and (2) opt out of electronic delivery and receive only paper copies for free. Both statements must also include an explanation of how to request the paper copies.
  • Include a cautionary statement that the covered document is not required to be available on the website for more than one year or, if later, after it is superseded by a later version of the covered document;
  • Include a phone number to contact the plan administrator or another representative of the plan.
  • Describe how to take a requested or required action (such as providing a response) or include a statement that no action is required. 
• Method of providing: The NOIA must be furnished electronically to the individual’s electronic address (email or smartphone number), and can only include the content outlined above. The NOIA must be furnished separately from other documents or disclosures, and must be written in a manner calculated to be understood by the average plan participant. The system for providing the NOIA must be designed to flag invalid or inoperable electronic addresses, and the administrator must take reasonable steps to cure any issues (such as using a secondary electronic address or obtaining a new address), or promptly furnish a paper version of the covered document. When employees terminate from employment, the administrator must take steps to ensure the electronic address is still accurate and available or obtain a new electronic address.

Website

The website should be accessible to covered individuals inside and outside of the workplace. Each covered document must:

• Be posted no later than the date on which it must be furnished under ERISA.
• Remain available on the website for at least one year, or, if later, the date it is superseded by a new version.
• Be presented on the website in a manner calculated to be understood by the average plan participant.
• Be presented in a widely available format that can be read online, printed clearly on paper, and permanently retained in an electronic format that meets these requirements. PDFs are an example of an acceptable format.
• Be electronically searchable.

Right to Paper Copies or to Opt Out of Electronic Delivery

On request from a covered individual, the administrator must provide a paper copy of the covered document free of charge. Covered individuals must also have the right to globally opt out of electronic delivery and only receive paper copies, for free. The proposed rule goes further than the 2020 pension plan safe harbor by stating that administrators may not charge for any paper copies, even if a covered individual requests the same document multiple times.

Initial Notification of Default Delivery and Right to Opt Out

Before electronic delivery, the administrator must provide each covered individual a paper notification explaining the process for delivering covered documents and how to access them, and identifying the electronic address that will be used. A paper version of the initial notice does not need to be provided to individuals who have been receiving documents electronically under the 2002 safe harbor, which is a departure from the 2020 pension plan safe harbor. 

Claims Regulation Amendments

The DOL also proposes to amend the ERISA claims procedure regulations to recognize the new safe harbor as a permissible method for furnishing electronic notices of adverse benefit determinations and benefit determinations on review for group health plans.

HIPAA and Other Legal Requirements

Compliance with the proposed safe harbor does not ensure compliance with HIPAA or other applicable federal or state privacy or security laws. Group health plans that are covered entities under HIPAA must continue to satisfy HIPAA’s requirements regarding the confidentiality and privacy of protected health information when furnishing disclosures electronically. Plan sponsors should also be aware that the proposed safe harbor would not modify or consolidate other existing electronic delivery frameworks applicable to group health plans, such as the summary of benefit coverage (SBC) disclosure rules, transparency in coverage rules, or electronic delivery regulations for cafeteria plans, flexible spending accounts and health savings accounts.

What’s Next

The DOL has requested comments by September 21, 2026. The alternative safe harbor would be effective on the first day of the first calendar year following the date of publication of the final rule.

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If you have any questions about this Legal Briefing, please feel free to contact any of the attorneys listed or the Eversheds Sutherland attorney with whom you regularly work.