DOL Proposal Would Let Health Plans Deliver Documents Electronically by Default

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Quick Hits

• The DOL has proposed a rule that would add an additional electronic disclosure safe harbor modeled on the 2020 “notice and access” safe harbor for pension benefit plans.
• The proposed rule would apply to “group health plans” and would affect approximately 2.7 million ERISA-covered group health plans—but not other welfare benefit plans—covering about 134 million participants.
• The safe harbor would provide a clearer compliance path, but electronic delivery may not be a complete defense, if, for example, there are notice defects or undeliverable emails.

That safe harbor, along with estimates of employer savings of up to $3.9 billion over the next decade, was published in the Federal Register on July 23, 2026. If finalized as proposed, the earliest the rule could become effective is January 1, 2027. Plan sponsors can use the period before any final rule takes effect to align vendor contracts, notice inventories, and recordkeeping practices with the proposed safe harbor and potential litigation defenses.

Background

Current DOL rules established in 2002 generally allow electronic delivery of Employee Retirement Income Security Act (ERISA) disclosures only to participants who are “wired at work” (i.e., who have access to the employer’s electronic information system as an integral part of their duties) or who provide affirmative consent. As a result, plans may need to make individualized eligibility determinations and deliver paper to more participants. In 2020, the DOL finalized a default “notice and access” safe harbor for retirement plans, allowing plan administrators to post pension benefit plan documents online and notify participants by email, without requiring prior consent. The 2026 proposed safe harbor would extend that model to group health plans, modified for health plan privacy concerns.

Covered Individuals and Covered Documents

The safe harbor would be available to provide notice to “covered individuals”—participants, beneficiaries, and other individuals entitled to health plan documents who provide an electronic address (email or mobile number) to the employer, plan sponsor, or administrator, or who have been assigned one by the employer for employment purposes. Adult dependent children could also receive documents electronically if they have provided an electronic address.

“Covered documents” would encompass any document or information the administrator must furnish under Title I of ERISA, including documents that need only be furnished upon request (e.g., under ERISA section 104(b)(4)). This is broader than the 2020 pension safe harbor, which excludes upon-request documents. The proposal could apply to many recurring health plan disclosures, including SPDs, summaries of material modifications (SMMs), COBRA notices, and claims notices.

No Direct Email Delivery

Unlike the 2020 retirement plan safe harbor, the proposed group health plan rule would not permit direct email delivery of covered documents. EBSA cited privacy concerns regarding protected health information (PHI) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Instead, group health plan administrators would be required to maintain a website where documents can be accessed and would have to furnish a notice of internet availability (NOIA) alerting covered individuals when documents are posted.

Notice of Internet Availability (NOIA)

The proposed rule would require the administrator to furnish a NOIA each time a covered document is posted to the website (or, for combined annual notices, once per plan year, no more than fourteen months after the prior notice). Each notice would be required to include all of the following:

• A prominent statement: “Disclosure About Your Health Plan”
• A statement that important information about the health plan is now available for review
• Identification of the covered document by name
• The website address or hyperlink where the document can be accessed
• A statement of the right to request a free paper copy and instructions for doing so
• A statement of the right to opt out of electronic delivery entirely, free of charge, and how to exercise that right
• A caution that the document need not remain posted for more than one year (or until superseded)
• A telephone number for the plan administrator

Plans generally would send a separate notice when a covered document is posted, although the proposal would allow certain annual or enrollment-related disclosures to be addressed through a combined annual NOIA. Like other participant notices, this would need to be written so that the average plan participant can understand it.

Website Standards

The proposed safe harbor would also impose specific website standards. Covered documents would have to be posted no later than the date otherwise required for furnishing under ERISA, remain available for at least one year (or until superseded), be presented in a manner understandable to the average participant, and be in a widely available format suitable for online reading and printing (e.g., PDF). Documents would also have to be electronically searchable and permanently retainable or downloadable. The administrator would be required to take measures to protect the confidentiality of personal information on the site.

Paper Notice Requirements

Before relying on the new safe harbor, administrators generally would be required to furnish a paper initial notice describing that documents will be delivered electronically, identifying the electronic address to be used, providing access instructions, and reiterating paper-copy and opt-out rights. Specifically, covered individuals would retain the right to request a free paper copy of any covered document at any time. They may globally opt out of electronic delivery entirely, free of charge.

What to Consider Now

The rule is only proposed, but plan sponsors and administrators may want to begin evaluating whether their current disclosure practices would qualify for the new safe harbor if it is finalized. For example:

• when entering into new agreements or amendments with health plan service providers, ensuring that the agreements allow for the use of any new safe harbor disclosure method once finalized;
• inventorying required group health plan disclosures and current delivery methods;
• confirming which participant populations have valid employer-assigned or provided electronic addresses;
• reviewing benefits portals, vendor websites, and mobile applications for access, search, print, retention, and privacy functionality;
• developing procedures for paper-copy requests, opt-outs, undeliverable notices, and post-employment address updates;
• confirming that vendors can maintain records of delivery, bounces, opt-outs, paper requests, and document availability; and
• considering enhanced communications or acknowledgments for high-risk notices, including wellness or tobacco surcharge disclosures.

Although the safe harbor would be voluntary, failure to satisfy its conditions could leave sponsors to defend whether their disclosure practices were otherwise reasonably calculated to reach participants.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation blog as additional information becomes available.

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