Are there any exceptions from any health and welfare benefit being considered an ERISA benefit?

Yes. There is a safe harbor under Labor Regulations Section 2510.3-1(j) for certain voluntary employee-pay-all” benefits. To qualify for this exemption from ERISA, an employer allows an insurance company to sell voluntary policies to interested employees who pay the full cost of the coverage. The employer must then permit employees to pay their premiums through payroll deductions and permits the employer to forward the deductions to the insurer   However, the employer may not make any contribution toward coverage and the insurer may not pay the employer for being allowed into the workplace. Additionally, the employer may not “endorse” the program – this element deciding is the key element in deciding whether the program is treated as an ERISA benefit.

What makes up an endorsement?

• Selecting insurers;
• Negotiating terms or design;
• Linking plan coverage to employee status;
• Using the employer’s name;
• Recommending the plan to employees; and
• Doing more than the permitted payroll deduction.