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Two separate statutes with different purposes that, for most employers, land on the same desk. ERISA governs the plans you sponsor. The FMLA governs the leave your employees take. Both share a defining characteristic: liability usually arises from process failures, not from denying anyone a benefit.
An employer that grants every leave request but never issues a designation notice has a problem. An employer that pays every claim but has no written plan document has a problem. On the ERISA side, the most frequent deficiency in a DOL health plan investigation is the absence of a plan document and a compliant SPD for welfare benefits — a carrier certificate is not a substitute. On the FMLA side, the two deadlines investigators check first are the five-business-day eligibility and designation notices, and failing to designate means the employee’s twelve weeks never start running. Form 5500 exposure runs to $2,739 per day with no cap, and New York layers PFL, paid prenatal leave, paid sick leave, DBL, and — for NYC staff — an amended ESSTA on top of the federal floor.
ERISA governs the plans you sponsor — how they are documented, disclosed, funded, administered, and reported. The FMLA governs the leave your employees take — who is eligible, what notice is required, and what happens to their job and their benefits while they are out. The two intersect constantly, most visibly in the requirement that group health coverage continue during FMLA leave on the same terms as if the employee were working.
Both are enforced primarily by the U.S. Department of Labor, and both share the same failure mode: liability arises from process failures rather than substantive denial of benefits. That is why this guide is organized around processes rather than around rights.
The most common finding in a DOL health plan investigation is not a fiduciary breach or a denied claim — it is the absence of a written plan document and a compliant summary plan description for welfare benefits. Many employers reasonably assume the carrier’s certificate of coverage serves both purposes. It does not. A certificate describes the insurance contract; it does not contain the ERISA-required plan provisions or the statement of participant rights.
ERISA covers employee welfare benefit plans — any plan, fund, or program established or maintained by an employer to provide medical, surgical, hospital, sickness, accident, disability, death, unemployment, vacation, apprenticeship, day care, scholarship, prepaid legal, or severance benefits. Private-sector employers of every size are covered; there is no small-employer exemption from ERISA itself.
The voluntary plan safe harbor is narrower than most employers think. All four conditions must hold: no employer contributions; participation completely voluntary; the employer does not endorse the program, its sole functions being to let the insurer publicize it and to collect and remit premiums; and the employer receives nothing beyond reasonable compensation for administrative services. Distributing enrollment materials on company letterhead, answering questions about the benefit, or including it in an open enrollment presentation can each constitute endorsement.
ERISA requires every plan to be established and maintained pursuant to a written instrument naming fiduciaries, describing the funding policy and the procedure for allocating responsibilities, and setting out amendment and termination procedures. Insurance certificates almost never contain these provisions — the standard solution is a wrap document, which wraps the required language around the underlying certificates and can consolidate several benefits into a single plan. Consolidating also has a reporting advantage: several benefits filed as one plan produce one Form 5500 rather than several.
To every participant within 90 days after coverage begins, and within 120 days for a new plan. Restated every 5 years if amended, otherwise every 10. On written request, within 30 days — failure exposes the administrator to up to $110 per day.
Generally within 210 days after the plan year in which the change was adopted. But a material reduction in group health services or benefits must go out within 60 days of adoption — the deadline most often missed when a plan adds pre-authorization, narrows a network, or raises cost sharing mid-year.
Required for welfare plans with 100 or more participants at the start of the plan year, and any funded plan regardless of size. Form 5558 buys an automatic 2½ months to October 15. Electronic filing through EFAST2 only; paper is not accepted.
A Summary Annual Report to participants within nine months after the plan year ends, or two months after an extension period. Totally unfunded welfare plans are exempt even where they must file the 5500.
Two Form 5500 mistakes worth checking today. First, employers frequently file for the 401(k) and never realize the health and welfare plans have their own obligation once they cross 100 participants — exposure runs to $2,739 per day with no maximum. Second, employers file separately for medical, dental, life, and disability when a properly drafted wrap document would permit a single filing, multiplying both the work and the number of ways to be late. If you have never filed a welfare plan 5500 and you have more than 100 covered employees, address it before your next renewal — the Delinquent Filer Voluntary Compliance Program caps penalties at a small fraction of the statutory amount for filers who come forward before the DOL makes contact.
A fiduciary is anyone who exercises discretionary authority over plan management or administration, or who has authority over plan assets. Fiduciary status follows function, not title — the HR director who decides eligibility appeals is a fiduciary regardless of what the plan document says.
Act solely in the interest of participants and beneficiaries, for the exclusive purpose of providing benefits and defraying reasonable plan expenses.
The care, skill, and diligence of a prudent person familiar with such matters. It asks how you decided, not whether the outcome was good, which is why documenting the decision matters as much as making it.
Administer in accordance with the plan's terms, insofar as they are consistent with ERISA.
Paying a service provider more than reasonable compensation is itself a prohibited transaction — which is why broker compensation disclosure matters to plan fiduciaries, not just to brokers.
An ERISA fidelity bond is required for anyone handling plan funds, at least 10% of funds handled, minimum $1,000 and maximum $500,000. Fiduciary liability insurance is a different product protecting the individual — both may be needed.
Urgent care within 72 hours; pre-service 15 days; post-service 30; disability 45. A plan that fails to follow its own procedures may lose deferential judicial review, and the claimant may be deemed to have exhausted remedies and go straight to court.
Layered on top, the Consolidated Appropriations Act, 2021 added obligations enforced against the plan — which means the employer, even where a vendor does the work: broker and consultant compensation disclosure under ERISA §408(b)(2)(B); the gag clause prohibition attestation, due annually by December 31 through the CMS portal; RxDC prescription drug reporting by June 1; Transparency in Coverage machine-readable files; and the No Surprises Act protections.
Mental health parity: what is paused, and what is not. In May 2025 the Departments announced they will not enforce the September 2024 MHPAEA final rule — including the fiduciary certification of the NQTL comparative analysis and its data collection requirements — while litigation is pending and for 18 months after it concludes. What is not paused is the statutory CAA obligation to prepare and maintain a written NQTL comparative analysis and produce it on request. The Departments have said so explicitly, the DOL has reaffirmed parity as an enforcement priority, and participants can still enforce parity through private litigation. Keep the analysis current; simply do not spend on the 2024 rule’s certification machinery until the rulemaking settles. For fully insured plans the carrier generally performs it — get written confirmation. Self-insured plans own it.
Two tests must both be satisfied. The employer must be covered — a private employer that employed 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding year. And the employee must be eligible — 12 months of employment (not necessarily consecutive), at least 1,250 hours of service in the preceding 12 months, at a worksite where the employer employs 50 or more within 75 miles.
Under FLSA principles. Paid leave, holidays, and vacation do not count toward the 1,250 — though hours that would have been worked must be credited for employees returning from USERRA-covered service.
It is the office to which the employee reports or from which assignments are made. A single remote employee can therefore be eligible through a distant office with 50 employees within 75 miles — and treating the home as the worksite is a recurring wrongful-denial error.
Calendar year, any fixed 12-month period, forward from first use, or rolling backward. Only the rolling method fully prevents stacking 24 consecutive weeks across a year boundary. If you have not selected and communicated one, the method most beneficial to the employee applies.
At least 15 calendar days to return it; if incomplete, state in writing what is missing and allow at least 7 days to cure. Contact with the provider may never be made by the employee’s direct supervisor, and may only authenticate or clarify.
Post the DOL general notice conspicuously at every worksite and include it in the handbook or give it to each new hire. A willful failure to post carries a penalty of up to $216 per offense.
From the leave request or from learning that leave may be FMLA-qualifying. States whether the employee is eligible and, if not, at least one reason. Form WH-381.
Certification requirements, substitution of paid leave, premium payment arrangements, job restoration rights, key employee status, and the consequences of failing to meet obligations.
From having enough information to determine whether the leave qualifies. States the designation, the amount counted against the entitlement if known, and whether fitness-for-duty certification will be required. Form WH-382.
Only enough information for the employer to know the leave may qualify. This is why supervisor training matters more than form design — the most common failure is simply not recognizing a request.
Two Form 5500 mistakes worth checking today. First, employers frequently file for the 401(k) and never realize the health and welfare plans have their own obligation once they cross 100 participants — exposure runs to $2,739 per day with no maximum. Second, employers file separately for medical, dental, life, and disability when a properly drafted wrap document would permit a single filing, multiplying both the work and the number of ways to be late. If you have never filed a welfare plan 5500 and you have more than 100 covered employees, address it before your next renewal — the Delinquent Filer Voluntary Compliance Program caps penalties at a small fraction of the statutory amount for filers who come forward before the DOL makes contact.
During leave, group health coverage must be maintained on the same terms as if the employee were working, with the employee still responsible for their share of the premium — establish that arrangement in writing in the rights and responsibilities notice. Job restoration is to the same or an equivalent position, a demanding standard that a comparable title with diminished responsibility generally will not satisfy. And FMLA exhaustion does not end the obligation to consider additional unpaid leave as an ADA accommodation: rigid “terminate at 12 weeks” policies are a recurring source of EEOC litigation.
The FMLA sets a floor. New York stacks several distinct entitlements on top of it, each with its own accrual, usage, and notice rules — and where leave qualifies under more than one, the employer may generally run them concurrently but must give written notice of the designation.
Up to 12 weeks of job-protected, wage-replacement leave. For 2026: 67% of average weekly wage, capped against a NYS AWW of $1,833.63 — a maximum of $1,228.53 per week. Employees contribute 0.432% of gross wages, capped at $411.91 per year. Rates and the AWW reset each January 1.
Effective January 1, 2025: 20 hours of paid leave per 52-week period for prenatal health care, in addition to and separate from New York paid sick leave, available to all employees regardless of employer size or tenure.
Separate state entitlements with their own rules. DBL provides short-term disability benefits for off-the-job injury or illness — and PFL and DBL combined may not exceed 26 weeks in any 52 consecutive weeks.
Significantly amended effective February 22, 2026: up to 56 hours paid safe/sick leave at 100+ employees (40 at 5–99), plus 32 hours of unpaid protected time available immediately at hire, expanded qualifying reasons, and a parallel 20-hour paid prenatal entitlement.
The return-to-work program pays twice. It earns a Code Rule 60 credit on the front end — and, far more significantly, converts lost-time claims into medical-only or short-duration claims, which reduces the primary loss values that drive your experience modification. For most employers the indirect benefit dwarfs the credit itself.
Why employers bring this work to GCI: ERISA and FMLA sit at the intersection of your benefits program and your employment practices, and problems in one usually surface first in the other. Group Coverage, Inc. confirms every welfare benefit is covered by a written instrument and a compliant SPD, assesses which plans must file a Form 5500 and whether consolidation is available, maps your disclosure calendar to your plan year, tracks the CAA obligations, and aligns FMLA with New York PFL, paid prenatal leave, paid sick leave, DBL, and workers’ compensation so entitlements run correctly rather than consecutively by accident.
For the primary sources, see the Employee Benefits Security Administration on ERISA reporting and disclosure, the Wage and Hour Division for the FMLA regulations and the WH-380 through WH-384 forms, New York State Paid Family Leave for current rates and caps, and NYC DCWP for the amended ESSTA rules.
If the only thing in the file is a carrier certificate, you have a gap — and it is the single most common finding in a DOL health plan investigation. Group Coverage, Inc. will review your plan documentation, your Form 5500 obligation, and your FMLA notice timing against New York’s leave entitlements, at no cost.
This article is for general educational purposes and is not legal or tax advice. ERISA and FMLA requirements, penalty amounts, and New York State and New York City leave entitlements change and vary by employer size, plan funding arrangement, and jurisdiction. Review your plan documents and policies, or speak with a licensed advisor or qualified counsel, to understand how these concepts apply to your organization.
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