On May 10, 2026, the U.S. Departments of Labor, Health and Human Services, and the Treasury (the Departments) jointly issued proposed rules that would create a new category of limited excepted benefits that employers can use to offer fertility benefits.

The proposed rules build on Executive Order 14216 and the Departments’ October 2025 guidance, which clarified that employers could offer fertility benefits through three existing excepted benefit pathways: (1) a fully insured independent, non-coordinated excepted benefit policy; (2) an excepted benefit HRA; and (3) an employee assistance program offering coaching and navigator services.

The proposed rule would establish a new category of limited excepted benefits. Excepted benefits are certain types of employee benefits that are not subject to HIPAA’s portability rules (like special enrollment rights and nondiscrimination rules), the ACA’s market reforms (such as annual limit bans and preventive care mandates), and certain other federal health care coverage laws.

The new category would apply limiting principles similar to those already in place for other limited excepted benefits, with the following main requirements:

The proposed rules would give employers a new option to offer fertility benefits as a limited excepted benefit. Employers that choose to offer fertility benefits under this new category would have flexibility in plan design, subject to the requirements above. While no action is required at this time, employers interested in offering fertility benefits should monitor the rulemaking closely and work with benefits counsel to evaluate their options.

More information can be found on the DOL’s Excepted Fertility Benefits webpage.