DOL proposes new electronic delivery safe harbor for group health plan disclosures

On July 23, 2026, the US Department of Labor (DOL) published a proposed rule that, if finalized, would create a new optional electronic disclosure safe harbor for Employee Retirement Income Security Act (ERISA)-covered group health plans. The proposal would permit plan administrators to furnish certain required health plan disclosures through a notice-and-access framework similar to the one now available for retirement plan disclosures.

The proposed rule is a notable development for employers evaluating broader electronic delivery of health plan communications, particularly for populations that may be difficult to reach under the DOL’s existing electronic disclosure rules.

Comments on the proposed rule are due September 21, 2026.

Current electronic delivery rules remain narrow for many employers

Under ERISA, plan administrators must use delivery methods for required disclosures that are reasonably calculated to ensure actual receipt of information by participants, beneficiaries, and other individuals. The DOL has previously issued rules and guidance regarding electronic delivery of disclosures required under Title I of ERISA, including, for example, summary plan descriptions (SPDs), summaries of material modifications (SMMs), and summary annual reports (SARs).

Under the current DOL 2002 electronic disclosure safe harbor, group health plans generally may rely on electronic delivery only for individuals who have work-related computer access as an integral part of their duties (commonly referred to as being “wired at work”) or who affirmatively consent to electronic delivery. As a result, many plans continue to rely on paper delivery for employees, beneficiaries, and dependents who do not fit within those categories, including retirees and employees in non-office roles. For employers with large or varied workforces, that approach can be costly and administratively burdensome. Many employers operate in a gray area where it is unclear how and when current methods of delivery, such as via websites, e-mail, or mobile phones, can be used to deliver participant disclosures.

New voluntary notice-and-access alternative

Under the proposed safe harbor, a group health plan would post ERISA-required group health plan documents on a website or electronic portal and send a “notice of internet availability” to the individual’s electronic address. The notice would direct the individual to the document and provide information about paper copy and opt-out rights. The safe harbor would apply to recurring disclosures and to documents that must be furnished upon request under ERISA, such as SPDs and SMMs, but would not extend to disclosures governed solely by other statutory regimes, such as the HIPAA Notice of Privacy Practices.

Any participant, beneficiary, or dependent child who provides an electronic address, such as an email address or mobile number, would be a “covered individual” eligible for default electronic delivery. An employer-provided electronic address generally may be treated as provided by the employee for this purpose.

Covered individuals would retain the right to request free paper copies of covered documents and to opt out of electronic delivery altogether. Before relying on the new safe harbor, plans would need to provide an initial notice – generally on paper – describing the electronic delivery process and the individual’s rights. The DOL has requested comments on whether that initial notice should be permitted electronically for individuals who already receive disclosures in that manner.

Important differences from the retirement plan framework

Although the approach is modeled closely on the retirement plan notice-and-access safe harbor (see our client alert here), it includes several health-plan-specific limitations. Most notably, plan administrators could not rely on the safe harbor to email covered documents directly to individuals. The DOL cited privacy considerations, including concerns related to protected health information covered by HIPAA, in declining to include that delivery method.

The proposed safe harbor would also be limited to group health plans, further complicating the disclosure rules for health and welfare plans. It would not apply to other ERISA-covered welfare benefits, such as life or disability arrangements, so employers that administer bundled welfare programs may need to maintain separate disclosure processes for health and non-health benefits. Unlike the retirement plan safe harbor, the proposal would apply to documents that must be furnished only upon request.

Practical significance for employers

The proposed safe harbor is intended to reduce printing and mailing costs and provide a clearer compliance path for employers that want to move recurring health plan disclosures online. In reality, it may make compliance even more complicated by creating three different DOL disclosure regimes: one for retirement plans, one for group health plans, and one for all other health and welfare plans. The DOL, however, estimates that the proposal would significantly reduce printing and mailing costs tied to these disclosures.

The new safe harbor would be voluntary, meaning plans could continue using paper delivery, rely on the existing 2002 electronic disclosure safe harbor or, if the proposal is finalized, use the new notice-and-access option. If finalized, the new safe harbor would become available for use on the first day of the first calendar year following publication of the final rule – meaning, if a final rule is published this year, plans could begin relying on it as early as January 1, 2027. For many employers, the proposed rule may be most useful as a more administrable default-delivery framework for active participants, beneficiaries, adult dependents, retirees, and other covered individuals who provide electronic contact information.

The DOL, Internal Revenue Service (IRS), and Department of Health and Human Services (HHS) each require a number of participant notices, disclosures, elections, and consents. All of these agencies have promulgated rules that permit the documents over which they have authority to be disseminated electronically under certain conditions. The electronic disclosure rules of one agency do not govern communications regulated by another agency. As a result, careful attention must be paid to which agency has authority over the disclosure(s) at issue.

For now, plan sponsors should continue to follow existing disclosure delivery rules unless and until the DOL issues a final rule.

How can employers prepare to implement the new safe harbor, if finalized?

Employers interested in using the new safe harbor, if finalized, may wish to consider the following steps:

• Inventory current disclosures. Identify which group health plan disclosures are currently delivered by paper or under the 2002 safe harbor, and which disclosures fall outside the DOL’s jurisdiction and are instead subject to either IRS or HHS guidance.
• Review electronic address collection. Assess how electronic addresses are collected and maintained, and whether existing vendor platforms can post required documents online, keep them accessible for the required retention period, and generate and track notices of internet availability.
• Consider submitting comments. Evaluate whether to comment on practical implementation issues, including the scope of the initial paper notice requirement and the treatment of individuals who already receive health plan disclosures electronically. Comments on the proposal are due September 21, 2026.

If you have questions about the proposed rule or its potential impact on your group health plan disclosure practices, please contact your regular McDermott lawyer or one of the authors.