On July 23, 2026, the DOL published a proposed rule that creates a new optional electronic disclosure safe harbor for ERISA-covered group health plans. If finalized, the proposal would expand employers' ability to deliver required group health plan disclosures electronically to more participants through a notice-and-access framework.
Background
The current ERISA electronic disclosure safe harbor rules were written in 2002 and allow digital distribution only to those individuals who either have access to the employer’s computer system at work as an integral part of their duties (“wired at work”) or who provide affirmative consent. The DOL noted that over 95% of adults now use the internet and smartphones. The proposed revisions reflect these new circumstances and seek to make the process of distributing plan notices electronically less cumbersome for plan sponsors.
The Proposed Rule
The proposal does not replace the current electronic disclosure safe harbor but allows group health plans to use a new alternative safe harbor. Instead of mailing certain required group health plan notices, plans could post these documents online and send a Notice of Internet Availability (NOIA) electronically.
Covered Documents
If a plan chooses to use the alternative safe harbor, then it would apply to any group health plan-related document or information that a plan administrator is required to furnish to participants and beneficiaries pursuant to Title I of ERISA, whether automatically or only upon request. Covered documents include (but are not limited to):
- SPDs
- SMMs
- COBRA-Related Notices
- HIPAA-Related Notices
- CHIP Notices
- SBCs
Notably, the proposed rule does not include documents for non-health plan-related benefits, such as life insurance. The DOL reserves the right to expand its definition in the future, although it may have to consult with other departments first.
Covered Individuals
The new safe harbor would apply to plan participants, beneficiaries, or other individuals entitled to notices and who provide the employer, plan sponsor, or administrator with an electronic address, such as an email address or smartphone number, at which the person may receive the NOIA. Importantly, an employer-assigned work email address is treated as if provided by the employee. Adult dependent children ages 18 and older may independently receive disclosures electronically if they provide an electronic address.
Key Requirements and Considerations
Website Rules
The proposal has requirements for the internal website where the covered documents are posted. The plan website (or portal or app) must make documents available when required, retain documents for at least one year (or longer if not superseded), allow documents to be searched electronically, permit downloading and retention, and protect the confidentiality of participant information. The plan administrator would be responsible for ensuring the establishment and maintenance of the website.
Each document must be posted on the website no later than the date it otherwise would have to be furnished under ERISA or its regulations. An administrator relying on the proposed electronic disclosure safe harbor would remain subject to all content, timing, and other requirements that apply to the specific disclosure.
The NOIA Requirement
The NOIA must be furnished when the covered document is made available online. The NOIA must identify the posted document(s) and include a 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 subsequent version of the covered document. The NOIA must provide a direct website link and include a contact phone number. The NOIA must also explain that participants have the right to free paper copies upon request and can opt out of electronic delivery entirely. The notice must also be written in a manner understandable to the average person entitled to a NOIA.
Under the proposed rules, a plan may provide one annual combined NOIA that includes or incorporates one or more of the following: 1) an SPD; 2) any covered document or information that must be furnished annually, rather than because of a specific event, and that does not require a covered individual to act by a specific deadline; 3) any other covered document authorized in writing by the Secretary of Labor; and 4) any applicable notice required by the Internal Revenue Code if authorized in writing by the Secretary of the Treasury. The proposal also allows a combined NOIA to identify any covered document that must be furnished with annual enrollment materials, if the NOIA is provided at the time of annual enrollment. In addition, a combined NOIA may identify any covered document that must accompany materials describing plan benefits, such as the disclosure of a reasonable alternative standard for a health-contingent wellness program.
A combined NOIA is permitted only if it is furnished each plan year and, if a combined NOIA was furnished in the prior plan year, no later than 14 months after the prior plan year’s notice was furnished. Use of an annual combined NOIA would not change the requirement that covered documents must be available online; each document listed in the combined NOIA must still be posted by its applicable ERISA deadline.
Importantly, plan administrators must monitor for invalid email addresses and provide a paper version of the covered document(s) identified in the undelivered NOIA if electronic delivery fails.
Additional Considerations
There are a few caveats to the proposed safe harbor. First, the proposed revisions do not allow plans to email the actual health plan disclosures directly. The agency expressed concerns about transmitting protected health information (PHI) via email. Instead, disclosures must generally be posted to a secure website with a NOIA sent to people entitled to receive it. The agency invites further comment on this limitation.
Second, before relying on the safe harbor, a plan administrator must provide an initial notice to covered individuals, explaining that covered documents will be provided electronically, the email address to be used for the NOIA, website access instructions, and their right to a paper copy or to opt out of electronic delivery. The initial notice would generally be provided on paper, with certain transition relief for individuals already covered by the 2002 safe harbor.
Employer Takeaway
Employers should be aware of the alternative safe harbor. Although this is at the proposed stage of the rulemaking process, and there may be changes before finalization, the DOL clearly intends to update its electronic distribution rules to reflect how people obtain information. The DOL asserts that the proposed rule will make distribution cheaper for employers (e.g., by reducing printing and delivery costs). The new safe harbor will likely also reduce plan administrative burdens, since employers would no longer need to assess whether employees are “wired at work” or have affirmatively consented to default them to electronic delivery. Electronic delivery can also improve participants’ access to health plan information.
Employers should consider whether the ability to move SPDs, HIPAA notices, COBRA materials, CHIP notices, SBCs, and similar disclosures to a notice-and-access model will better serve their workforce. For employers that rely on their carriers to provide certain notices, the proposed rule allows a health insurer to rely on the new safe harbor if the plan sponsor has entered into a written agreement under which the insurer agrees to provide ERISA-required information on the plan’s behalf. In addition, employers should be aware of the continued need for robust HIPAA/privacy controls because the proposal emphasizes protection of PHI.
The agency is seeking comments about the proposed changes. Comments are due by September 21, 2026.
Read the DOL’s proposed rule on electronic disclosure by group health plans under ERISA.