Multiple Employer Welfare Arrangement (MEWA)
A MEWA is an employee welfare benefit plan (or other arrangement) that provides welfare plan benefits to the employees of two or more employers. MEWAs are subject to regulation both by ERISA and state insurance laws. They are also subject to special reporting requirements.
A MEWA provides welfare benefits to employees (or their dependents) of two or more employers or employee organizations.
Welfare benefits include:
- medical, surgical, or hospital care or benefits,
- benefits in the event of sickness, accident, disability, death or unemployment,
- vacation benefits,
- apprenticeship or other training programs,
- day care centers,
- scholarship funds,
- prepaid legal services, and
- any benefit described in section 302(c) of the Labor Management Relations Act.
Employers include any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan. It includes a group or association of employers acting for an employer in such capacity. However, multiple entities within the same controlled group are considered one employer for this purpose.
Employee organizations include "any labor union or any organization of any kind, or any agency or employee representation committee, association, group or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning an employee benefit plan, or other matters incidental to employment relationships." ERISA Section 3(4).
A MEWA does not include an arrangement:
- under or pursuant to one or more agreements which the DOL finds to be collective bargaining agreements;
- by a rural electric cooperative; or
- by a rural telephone cooperative association.
Collective Bargaining Exception
A welfare plan that is subject to a collective bargaining agreement (CBA) cannot be a MEWA. ERISA § 3(40)(A). Labor Reg. § 2510.3-40 (the “Regulations”) sets forth criteria for the Secretary of Labor to find that plan is maintained pursuant to a bona fide CBA. Provided no exception applies, a CBA will be found to exist if a complex test provided by paragraph (b) of the Regulations is satisfied.
The test may be divided into three prongs. Prong one is simply the existence of an employee welfare benefit plan within the meaning of ERISA § 3(1). Labor Reg. § 2510.3-40(b)(1). Prong two requires at least 85 percent of participants to fall into at least one of ten categories. Labor Reg. § 2510.3-40(b)(2). Some of these categories include multiple subcategories, and some also reference the requirements of prong three.
Prong three requires the existence of a written agreement between at least one employer and at least one employee organization that is: (1) the product of a bona fide collective bargaining relationship; (2) identifies the parties; (3) identifies the personnel, jobs, or work jurisdictions covered by the agreement; (4) provides for terms and conditions of employment other than those of the plan; and (5) is not unilaterally or automatically terminable solely for failure to contribute to or pay benefits from the plan. Labor Reg. § 2510.3-40(b)(3).
Adding to the complexity of the Regulations (as well as their somewhat circular nature) is the fact that criterion (1) of prong three—the existence of a “bona fide collective bargaining relationship”—is governed by another complex, multifactor test contained in Labor Reg. § 2510.3-40(b)(4). This subtest sets forth eight criteria, the meeting of four of which would create a rebuttable presumption that a bona fide collective bargaining arrangement exists. In addition, the Secretary of Labor may consider a ninth criterion which consists of “other objective or subjective indicia of actual collective bargaining and representation.” Labor Reg. § 2510.3-40(b)(4)(ix).
Even if the three-prong test described above is met, a plan shall not be deemed to be maintained pursuant to a CBA if the plan is at least partially self-funded and marketed to employers by certain classes of disqualified people. Labor Reg. § 2510.3-40(c)(1). (These classes essentially amount to insurance salesmen.) A plan shall also be deemed not to be maintained pursuant to a CBA if it is a scheme to evade compliance with state law, or if the three-prong test is satisfied by forgery, fraud, etc.
Whether fully insured or self-insured, MEWAs are subject to state insurance laws which vary widely from state to state. This is a key disadvantage of a MEWA.
A MEWA must file Form M-1 once a year, due on March 1. A 60-day extension may be requested.
MEWA Status Rulings
- EBSA Information Letter 50806
- EBSA Advisory Opinion 1992-04A
- EBSA Advisory Opinion 1992-14A
- EBSA Advisory Opinion 1995-29A (application to employee leasing organization)
- EBSA Advisory Opinion 2011-01A
- EBSA Advisory Opinion 2011-02A