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If DOL removed commonality and control requirement, what entities would qualify as an "other arrangement" under 3(40)


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If the DOL no longer required employer associations to be bona fide (AKA have commonality and control over the plan), what entities would qualify as MEWA under the phrase "any other arrangement"?

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People are correct in that the commonality requirement for pensions is not explicitly stated in ERISA. My thought, is congress may have ratified the DOL's position requiring employer associations to possess commonality and control by adopting the 1983 amendment defining a MEWA:

"The term 'multiple employer welfare arrangement' means an employee welfare benefit plan, or any other arrangement (other than an employee welfare benefit plan), [...] to the employees of two or more employers" ERISA 3(40).

Essentially, unless some entities would still be considered to be a non-EWBP MEWA without the commonality and control requirements, then the definition of employer association must require some form of commonality and control, otherwise part of the statute would be superfluous.

Thoughts?

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