DOL Issues Proposed Electronic Disclosure Safe Harbor for Group Health Care Plans

On July 22, 2026, the Department of Labor (DOL) issued a proposed rule that, if finalized, would create an optional electronic disclosure safe harbor for group health plans that closely mirrors the safe harbor it created for pension benefit plans in 2020. The proposed rule has notable differences from the 2020 pension plan rule and does not extend to welfare plans that are not group health care plans. Currently, group health plans only have the safe harbor provided under the rule issued by the DOL in 2002 to rely on for electronic disclosures, which applies to both pension benefit plans and group health plans.

2002 Electronic Disclosure Rule

In general, the 2002 electronic disclosure rule requires that plan administrators:

• Ensure that their systems for providing ERISA-required disclosures result in actual receipt of the disclosures,
• Protect the confidentiality of personal information,
• Are consistent with the style, format and content requirements of the particular document's specifications,
• Provide to each participant, beneficiary or other required individual an electronic or non-electronic notice of the disclosure's significance at the time the disclosure is electronically made available,
• Inform these individuals of the right to request a paper version of the disclosure document, and
• Upon an individual's request, provide the paper version of the requested disclosure.

The 2002 Rule applies to individuals who: (1) are "wired at work," that is, they have access to the employer's or plan sponsor's electronic information system as an integral part of their work duties, and (2) affirmatively consent, in electronic or non-electronic form, to receive disclosure documents in electronic form and have not withdrawn such consent. Prior to consenting, individuals must have been provided, in electronic or non-electronic form, clear and conspicuous notice of the types of documents the consent applies to, that the consent can be withdrawn at any time, instructions as to how to withdraw consent or update necessary personal information, the cost (if any) of any requested paper version of a disclosure document, and any hardware or software requirements for accessing and retaining the disclosures.

Plan sponsors and administrators of group health plans can continue to rely on the 2002 electronic disclosure safe harbor or furnish paper versions of required documents by hand-delivery or mail.

2026 Proposed Electronic Disclosure Safe Harbor

Covers More Individuals. The new electronic delivery safe harbor would apply to notices and documents for participants, beneficiaries, and other individuals entitled to receive such covered disclosure documents (including covered dependents who are 18 years or older) who provide an email address or a smartphone number capable of receiving a "Notice of Internet Availability" (NOIA). This electronic address may be provided when the individual begins participating in the group health plan or as a condition of employment. If the administrator discovers that an electronic address has become inoperable, it must take reasonable steps to cure the problem, including, potentially, providing the disclosure documents in paper form. Alternatively, if an electronic address is assigned by an employer to an employee for employment-related purposes, including the delivery of covered documents, the employee may be treated as if they provided the electronic address.

Covers More Documents. The new rule applies to any document or information (covered documents) required to be furnished to participants and beneficiaries under Title I of ERISA, including any document that must be provided only upon request by the individual.

Regarding the NOIA, plan administrators for group health plans are required to furnish to each covered individual a NOIA for each covered document at the time the covered document is made available on the website. If an administrator furnishes a combined NOIA for more than one covered document, the requirements are treated as satisfied if the NOIA is furnished each plan year, and, if the combined NOIA was furnished in the prior plan year, no more than 14 months following the date the prior plan year's notice was furnished. For documents that a group health plan is only required to furnish upon request, a NOIA must be provided following a request by a covered individual for such covered document at the time such document has been made available on the website. Each covered document contained in a specific or combined NOIA must be made available on the website no later than the date it must be furnished to participants and beneficiaries under ERISA.

Under the proposed safe harbor, a NOIA must:

• Clearly and prominently indicate that its content is in regard to the group health care plan, such as a title setting forth "Disclosure About Your Health Plan,"
• Include a statement that reads: "Important information about your health plan is now available. Please review this information."
• Include an identification of the covered document by name, such as "Your HIPAA Notice of Special Enrollment Rights is now available."
• Briefly describe the covered document if identification by name does not reasonably indicate the nature of the disclosure,
• Include the internet website address or hyperlink where the document is available,
• Provide notice of the right to request a paper version of the document, free of charge,
• Explain how to request a paper copy of the document and how to opt out of electronic delivery,
• Include a statement that the document is not required to be available on the website for more than one year, or if later, after it is superseded by a subsequent version of the covered document, and
• Include the telephone number of the plan administrator or other designated contact.

Internet Website. Similar to the 2020 pension plan electronic disclosure rule, plan administrators must ensure the existence of the website at which covered documents are posted. In addition, they are responsible for its establishment and maintenance. Such responsibilities may be delegated, but under ERISA's plan fiduciary rules, plan administrators are then responsible for monitoring the performance of individuals or entities to whom the responsibilities are delegated. Unlike a pension plan administrator, a group health plan administrator is not permitted to provide disclosure documents via email addresses as an alternative to providing a website. Under the proposed rule, a plan administrator must take measures reasonably calculated to ensure the website protects the confidentiality of personal information, including PHI protected by HIPAA's privacy rule.

Initial Notification. Under the proposed safe harbor, the administrator of a group health plan is required to furnish to each individual, prior to the administrator's reliance on the electronic delivery safe harbor, a notification that covered documents will be furnished electronically to an electronic address and provide the following:

• Identification of the electronic address that will be used for the individual,
• Instructions necessary to access the documents,
• A cautionary statement that the disclosure document is not required to be available on the website for more than one year or, if later, after it is superseded by a subsequent version of the covered document,
• A statement of the right to request and obtain a paper version of a covered document, free of charge, with an explanation of how to exercise this right, and
• A statement of the right, free of charge, to opt out of electronic delivery and receive only paper versions of covered documents with an explanation of how to exercise this right.

This initial notification may be provided electronically to those individuals who already opted in to electronic delivery under the 2002 disclosure rule.

Special Rule for Severance From Employment. A group health plan administrator must take reasonable measures to ensure the continued accuracy of an electronic address after a severance of employment or obtain a new address from the individual.

Special Rule for Annual Combined NOIAs. With respect to any required disclosure that must be given with annual enrollment materials, a combined NOIA may be utilized but must be provided at the time of annual enrollment. Additionally, any covered document that must be included with materials that describe the plan benefits, such as the disclosure of a reasonable alternative for a health-contingent wellness program, may be identified in a combined NOIA.

Special Rule for Multiple Paper Copy Charges. The proposed rule provides that any and all paper copies of disclosure documents must be provided free of charge. There can be no limit on the number of paper copies requested by an individual.

Special Rule for Claims Procedures. Any document provided electronically and required under claims procedure must comply with the claims procedure rules applicable to group health plans.

The DOL proposes that the proposed rule is applicable to group health care plans on the first day of the first calendar year following the date of publication of the final rule. Comments on the proposed electronic disclosure rule are due September 21, 2026.

Contact Us

Calfee's Employee Benefits and Executive Compensation team is actively working with group health plan sponsors and administrators to understand the proposed electronic delivery safe harbor. Calfee can assist with:

• Reviewing group health plan documents and participant communications, including all ERISA-required disclosures,
• Reviewing a plan's procedures for electronic disclosure of covered documents,
• Providing guidance on coordinating with your plan's vendor as to the provisions of covered documents, as necessary, and
• Preparing and updating summary plan descriptions, summary of material modifications, and other participant communications required under ERISA.

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