The Department of Labor (DOL) issued final regulations establishing new safe harbors for the electronic delivery of required retirement plan disclosures under ERISA. As background, retirement plan administrators must deliver required disclosures using methods that are reasonably calculated to ensure actual receipt of documents by plan participants.
Under prior guidance from 2002, the DOL created a safe harbor electronic delivery method for required disclosures. But the 2002 safe harbor is only available with respect to employees that have regular access to a computer at work as an integral part of their jobs or who otherwise affirmatively consent to the electronic disclosure. Accordingly, the 2002 safe harbor has limited utility to many employers.
While the 2002 safe harbor remains available, the new final regulations add two additional options for electronic disclosure. Specifically, the plan administrator may:
- Post documents to a website (referred to as the “notice-and-access” safe harbor); or
- Use a direct email option.
General Applicability and Initial Paper Notice
Both safe harbor methods are only available with respect to “covered individuals.”
- In general, a “covered individual” is a person who is entitled to plan documents under ERISA, and who is assigned an electronic address for employment-related purposes or who furnishes an electronic address to the employer.
- An employer cannot assign an employee an electronic address to be used solely for the purpose of complying with the new safe harbor. The email address must be provided in connection with a larger business purpose (e.g., an employee’s general work email would work for this purpose).
- For terminated employees, the plan administrator would need to take reasonable measures to ensure any electronic address provided by the individual remains operational or obtain a new electronic address.
Before disclosure is made under either method, covered individuals must be given an initial paper notice of default electronic delivery that contains certain required content. It also must explain their right to receive a copy of any covered document in paper form free of charge, or to opt out of electronic delivery entirely (thus, requiring paper delivery with no charge). The initial notification must state the electronic address that will be used for the participant and include any instructions necessary to access the disclosed documents. Both safe harbor methods require that plan administrators take measures reasonably calculated to ensure the confidentiality of covered individuals’ personal information.
Health and welfare plan disclosure documents are not covered under the final regulations. That is, the safe harbors only apply to retirement plan related disclosures. Similarly, documents that are to be provided upon request (for example, plan documents) are not covered by the final regulations.
Notice and Access Method: Posting on a Website
For each disclosure posted on an internet website, an electronic notice of internet availability (NOIA) must be provided.
- The NOIA must include a description of the document being disclosed, instructions on how to access information on the website and other required content.
- Required disclosures must be posted on the website by the deadline required under ERISA and must remain available on the website for one year or until they are superseded by a later document, whichever is later.
- The final regulations also require the NOIA (as well as the initial paper notice referenced above) to include a cautionary statement that describes this timeframe.
Certain disclosures can be provided in a combined annual NOIA. However, documents that are not furnished annually (e.g., quarterly benefit statements) must have their own separate NOIA .
- The NOIA must include the web address of the posted document (or an imbedded hyperlink to it), a statement of the right to receive a paper version free of charge and a statement of the right to opt out of electronic disclosure with instructions on how to do so, along with the administrator’s phone number.
- The NOIA cannot include anything that is not explicitly required or permitted by ERISA, but may also include a statement about whether action by the covered individual is invited or required in response to a document and how to take such action, or that no action is required and pictures, logos or similar design elements.
The website used for disclosure may be an internet website or other internet or electronic-based repository (for example, a mobile application). In addition, employers must have a system in place to alert them of any invalid or inoperable electronic addresses. If the employer is notified that an electronic address is invalid or inoperable, that participant is considered to have opted out of electronic disclosures unless the inoperable email is resolved.
Email Delivery Method
With the email delivery method, instead of sending a NOIA regarding the posting of a document on a website, plan administrators can send the disclosure document directly via email to the address provided by the covered individual.
- Employers may send the required disclosures within the body of an email or as an attachment to the email.
- The requirements for employers providing these notices electronically are largely the same as the requirements set forth above for posting to a website. However, there is no requirement need to provide any NOIA for email delivery. Instead, employers must include statements in the email describing the document, explaining the participant’s right to get a paper copy of the document, as well as the participant’s right to opt out of electronic delivery.
The final rule will become effective July 27, 2020. However, the DOL indicated that it will not take any enforcement action against a plan administrator that relies on the safe harbor before that date. The DOL explained that its non-enforcement policy is part of a broader effort to respond to the effects of COVID-19 and its desire is to reduce administrative burdens on employers.
Special thanks to the author, Christopher Guldberg.