DOL Proposes New Electronic Delivery Safe Harbor Under ERISA

Caitlin Hillenbrand, Associate Director Benefits Compliance

On July 23, 2026, the U.S. Department of Labor’s (“DOL”) Employee Benefits Security Administration (“EBSA”) published a proposed rule “that would modernize how group health plans deliver required disclosures, making communication faster, more efficient, and less costly” under the Employee Retirement Income Security Act (“ERISA”). Public comments about the proposed rule were being accepted through September 21, 2026. Because the proposed rule has not yet been finalized, group health plans may continue to rely on the 2002 safe harbor rule for electronic delivery or provide required documents in paper form.

By way of background, the DOL established a safe harbor rule in 2002 that permits the use of electronic media to satisfy ERISA’s delivery disclosure requirements. Approved delivery methods include company websites, email, and other electronic communication platforms. Pursuant to this safe harbor, employers may provide the required disclosures electronically to the following: (1) employees who have work-related access to a computer as an integral part of their job duties, and (2) other plan participants and beneficiaries who affirmatively consent to electronic delivery. The safe harbor applies to a wide range of ERISA-required disclosures, including summary plan descriptions (“SPDs”), summary annual reports (“SARs”), summaries of material modifications (“SMMs”), and certain other group health plan notices, such as the Medicare Part D creditable coverage notice and the Women’s Health and Cancer Rights Act (“WHCRA”). Thereafter, in 2020, the DOL introduced a separate and more expansive electronic disclosure safe harbor specifically for retirement plans.

Regarding the new proposed rules, in short, they would create a new safe harbor allowing group health plan administrators to furnish the required disclosures electronically. Notably, the proposed rule closely aligns with the 2020 electronic disclosure safe harbor for retirement plans. To use the safe harbor, plan administrators would be required to do the following:

• Provide an initial notification to each covered individual before relying on the safe harbor. The notification must identify the electronic address that will be used for delivery, explain how covered documents can be accessed, and describe the individual’s right to opt out of electronic delivery, as well as request paper copies at no cost. For individuals who currently receive disclosures under the 2002 electronic disclosure safe harbor, this initial notice may be delivered electronically.
• Furnish a Notice of Internet Availability (“NOIA”) for each covered document, including documents that are required to be provided only upon request. The NOIA must inform covered individuals of their right to request a paper copy free of charge and their right to opt out of electronic delivery. It must be sent electronically to the individual’s designated electronic address or internet-connected mobile device, contain only the content specified by the proposed rule, and be provided separately from other disclosures. However, the proposed rule permits the use of a combined annual NOIA covering multiple documents if specific conditions are met.
• Establish and maintain a website that provides covered individuals with access to required documents. The website must be designed in a manner reasonably calculated to satisfy the proposed rule’s requirements regarding availability, accessibility, confidentiality, and document presentation.
• Promptly furnish paper copies of any covered document, free of charge, upon request.

Unlike the previously mentioned 2020 safe harbor, the proposed rule would not permit direct email delivery of required disclosures. The DOL cited concerns that many ERISA group health plan disclosures contain sensitive information, including protected health information (“PHI”), making a website-based delivery approach more appropriate. In sum, the DOL hopes that expanding the safe harbor will increase “the availability, timeliness, and usability of disclosures, allowing participants to receive plan materials in a manner that better reflects how participants communicate and obtain information today.”

Employer action items

• Review current disclosure practices, identifying which ERISA-required group health plan disclosures are currently distributed electronically under the 2002 safe harbor or via paper and evaluate how the new safe harbor could change any processes.
• Monitor the rulemaking process, tracking the DOL’s progress on the proposed rule and any changes made before a final rule is issued.
• Update participant electronic contact information, where appropriate, and confirm website capabilities and safeguards in place to protect information.

Additional Information and Resources

• Department of Labor News Release | Proposed Rules to Modernize Electronic Delivery for Group Health Plans
• Federal Register | Electronic Disclosure by Group Health Plans Under ERISA