Blog 5/22/2020

Final Electronic Disclosure Rule for Retirement Plans Released

As you may have seen, the Department of Labor has released its final rule on electronic distribution of ERISA-mandated materials for retirement plans. The final rule provides a new safe harbor option for employers, plan sponsors and plan administrators who want to distribute these materials electronically. The rule allows employers who meet certain “notice and access” conditions to provide participants and beneficiaries with required notices and disclosures online or deliver them to workers by email, as a default.

The new safe harbor permits the following two optional methods for electronic delivery:

  • Website Posting.Plan administrators may post covered documents on a website if appropriate notification of internet availability is provided to covered individuals’ electronic addresses.
  • Email Delivery.Alternatively, plan administrators may send covered documents directly to covered individuals’ electronic addresses, with the covered documents either in the body of the email or as an attachment to the email.

The new safe harbor includes a variety of protections for covered individuals, including:

  • Right to Paper.Covered individuals can request paper copies of specific documents, or opt out of electronic delivery entirely, at any time, free of charge.
  • Initial Notification.Covered individuals must be notified–via paper–that the way they currently receive retirement plan disclosures (e.g., paper delivery by US mail) is changing. The notice must inform them of the new electronic delivery method, the electronic address that will be used, and the right to opt out if they prefer paper disclosures, among other things. This notice is required before the plan may use the new safe harbor.
  • Notifications of Internet Availability (NOIA). Covered individuals generally receive an NOIA each time a new covered document is made available for review on a website. However, the final rule permits an annual NOIA to cover multiple documents. The NOIA must list and describe the document being posted, show an address or hyperlink to the website, and remind the individual of their right to request paper copies or opt out of electronic delivery.
  • Website Retention.Covered documents must remain on a website until superseded by a subsequent version, but in no event for less than one year.

Further, the final rule prescribes specific measures to ensure that the NOIA be concise, understandable, and contain only specified information.

The safe harbor contained in the final rule is an alternative to—not a replacement for—the 2002 safe harbor, which applies to ALL types of plans and requires participants to be “wired at work” or have affirmatively elected to receive electronic distribution.

The new rule takes effect 60 days after its publication in the Federal Register, but employers and plan administrators can begin implementation immediately with no penalty. For details, see: https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/electronic-disclosure-safe-harbor-for-retirement-plans and https://www.federalregister.gov/documents/2020/05/27/2020-10951/default-electronic-disclosure-by-employee-pension-benefit-plans-under-erisa.

DirectPath provided comments on the proposed regulations last fall. To read our entire comment letter, click here.

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