Administrators of 401(k) plans and other ERISA-covered retirement plans now have much greater freedom to electronically distribute required plan documents to participants, beneficiaries and other individuals, under final rules recently issued by the U.S. Department of Labor. Whether employers choose to migrate to a new electronic delivery system at this point in time remains to be seen.
Effective July 27, 2020, for the first time ever, employers and plan administrators are permitted to set and use electronic delivery as the default method for delivering most retirement plan disclosures required by Title I of ERISA, such as a Summary Plan Description and quarterly account statements. The DOL’s earlier safe harbor rules for electronic disclosure, which are still valid, have been available only for individuals who affirmatively consent to electronic disclosure, or those who are “wired at work.”
Importantly (and somewhat ironically), the first step employers and administrators will need to take to avail themselves of the new electronic delivery safe harbor is to distribute a paper notice to covered individuals to initially notify them of the employer’s new electronic delivery system, including notice of the right to opt out free of charge and receive paper copies of covered documents at any time. And of course, this new safe harbor would not be a true ERISA regulation if it did not contain an extensive set of detailed content requirements for both the initial paper notice, and the electronic features of the rule briefly discussed below.
The new electronic disclosure rules provide administrators two general methods for electronic delivery of retirement plan documents: (1) notice and website access; and (2) direct email.
Under the first method, called “notice-and-access”, plan administrators may send covered individuals a “notice of internet availability” (NOIA) to an electronic address provided by the individual or assigned by the employer for other employment-related purposes. The designated electronic address for purposes of receiving an NOIA may be an email address, a smartphone to receive text messages, or potentially other devices. The NOIA must provide a website address or hyperlink to the website where individuals may immediately view or easily log in to view the covered document, which generally must remain on the website for one year, or if later, when the document is superseded by a subsequent version. Among other required content, the NOIA must include:
- A prominent statement that reads: “Disclosure About Your Retirement Plan”
- Another statement that reads: “Important information about your retirement plan is now available. Please review this information.”
- Identification of the covered document by name (for example, a statement that reads: “Your Quarterly Benefit Statement is now available”), and a brief description of the covered document if necessary to clarify the nature of the document.
NOIAs must generally be provided when a covered document is posted to the applicable website, although certain notices may be provided annually as a combined NOIA, with additional special timing rules.
As an alternative to the “notice-and-access” safe harbor, plan administrators may directly email covered documents, either in the body of the email or as an attachment. Many similar requirements of the NOIA apply to the content of a direct email. In addition, administrators are required to take reasonable steps to protect the confidentiality of personal information sent in direct emails to covered individuals.