MEWAs, Form M-1, and the Welfare-Plan Form 5500

A1.The statutory definition

Part 13, ch. 8, § A1

A MEWA is "an employee welfare benefit plan, or any other arrangement (other than an employee welfare benefit plan)," established or maintained to offer or provide any ERISA §3(1) welfare benefit "to the employees of two or more employers (including one or more self-employed individuals), or to their beneficiaries." Three arrangements are carved out: those established or maintained (i) under or pursuant to agreements the Secretary finds to be collective bargaining agreements, (ii) by a rural electric cooperative, or (iii) by a rural telephone cooperative association. Statute: ERISA §3(40)(A), 29 U.S.C. §1002(40)(A).

A2.The single-employer/control-group exception — the 25% floor

Part 13, ch. 8, § A2

Two or more trades or businesses, incorporated or not, are deemed a single employer if they are within the same control group. "Common control" is determined under DOL regulations applying principles similar to ERISA §4001(b), "except that, for purposes of this paragraph, common control shall not be based on an interest of less than 25 percent." Statute: ERISA §3(40)(B)(i)–(iii). As of the MEWA Guide's April 2022 revision, DOL had not issued regulations under §3(40)(B)(iii), and no such regulation appears in the e-CFR as of July 23, 2026. In their absence DOL "would generally follow the Code and Title IV common control rules" (the 80% parent-subsidiary and brother-sister tests of 26 C.F.R. §1.414(c)-2). DOL also cautions that the MEWA single-employer concept serves a different policy, which is preserving State regulatory power. DOL guidance: MEWAs Under ERISA: A Guide to Federal and State Regulation (rev. Apr. 2022). The Form M-1 regulation separately excuses filing for an entity that is a MEWA only because it covers employees of trades or businesses sharing "a common control interest of at least 25 percent at any time during the plan year, applying principles similar to the principles of section 414(c)." Final reg: 29 C.F.R. §2520.101-2(c)(2)(ii)(A).

A3.The collectively bargained exception — 29 C.F.R. §2510.3-40 and ECEs

Part 13, ch. 8, § A3

A plan is "established or maintained under or pursuant to" agreements the Secretary finds to be collective bargaining agreements for a plan year only if it meets four criteria and is not excluded:

• it is an ERISA §3(1) welfare plan;
• at least 85% of its participants fall within listed categories (employees under the bargaining agreement, qualifying retirees, COBRA/FMLA/USERRA continuees, union and fund employees, and others);
• the plan is incorporated or referenced in a written agreement that is the product of a bona fide collective bargaining relationship, identifies the parties and covered personnel, covers terms of employment beyond the plan, and is not unilaterally terminable or automatically terminated solely for non-payment of contributions; and
• in a Part 2570, subpart H proceeding, bona fide bargaining is presumed if at least four of eight listed factors are met.

Final reg: 29 C.F.R. §2510.3-40(b); 68 Fed. Reg. 17480 (Apr. 9, 2003). Exclusions: the plan fails for any year in which it is self-funded or partially self-funded and marketed to employers or sole proprietors by insurance producers, unlicensed persons, or commission-paid marketers. It also fails where the agreement is a "scheme, plan, stratagem, or artifice of evasion" with a principal intent to evade State insurance law, or where there is fraud, forgery, or willful misrepresentation about the criteria. Final reg: 29 C.F.R. §2510.3-40(c). An Entity Claiming Exception (ECE) is an entity that claims not to be a MEWA solely on this ground. An ECE files Form M-1 during the three years after each "origination" (E2). Final reg: 29 C.F.R. §2520.101-2(b)(2), (b)(9), (c)(1)(ii). Final reg: 29 C.F.R. §2510.3-40(g). For genuine multiemployer plans, see Part 10 (Multiemployer Plans and Withdrawal Liability).

A4.Rural electric and telephone cooperatives

Part 13, ch. 8, § A4

The cooperative exceptions are defined narrowly. A rural electric cooperative is either a §501(a)-exempt organization engaged primarily in providing electric service on a mutual or cooperative basis, or a §501(c)(4) or (c)(6) organization at least 80% of whose members are such organizations. A rural telephone cooperative association is a §501(c)(4) or (c)(6) organization at least 80% of whose members are engaged primarily in providing telephone service to rural areas on a mutual, cooperative, or other basis. Statute: ERISA §3(40)(B)(iv)–(v).

A5.Who is an "employee" — PEOs, leasing organizations, and contractors

Part 13, ch. 8, § A5

A MEWA exists whenever the covered individuals are employees of two or more employers. DOL decides employee status under common-law agency principles, and a contract purporting to create an employment relationship does not control where the common-law facts say otherwise. Under DOL's view, a PEO plan covering employees of two or more client employers (or of the PEO and at least one client) is a MEWA, and the PEO's "co-employer" status under other laws is not determinative. DOL guidance: MEWA Guide (rev. Apr. 2022), Part on PEOs; Information Letter to the Nevada Attorney General (May 8, 2006). Covering self-employed individuals or non-employees (for example, independent contractors or outside directors) alongside employees also makes a single-employer plan a MEWA. Statute: ERISA §3(40)(A) ("including one or more self-employed individuals"). The Form M-1 regulation excuses filing where such non-employees (excluding spouses and dependents) do not exceed 1% of covered employees and former employees. Final reg: 29 C.F.R. §2520.101-2(c)(2)(ii)(C).