DOL allows retirement plans to press "send" on electronic communications

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Employee Benefits Alert

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On May 21, 2020, the US Department of Labor (DOL) released final regulations allowing required retirement plan disclosures to be posted online or delivered to plan participants and beneficiaries by email as a default method of delivery. 

The regulations are welcome news for retirement plan sponsors and administrators as they provide additional alternative methods of electronic delivery for retirement plan disclosures required by the Employee Retirement Income Security Act of 1974 (ERISA). The new delivery alternative is more in step with currently available technology, common employer practices, and individuals’ evolving habits and expectations of accessing important information online and on demand.  Retirement plans that use the new delivery method should see reduced costs for printing, materials, assembly, and mailing costs associated with furnishing hard copies of printed disclosures.

Evolution of electronic disclosure rules

ERISA-covered retirement plans must furnish multiple disclosures each year to participants and beneficiaries resulting in significant costs and administrative efforts by plan administrators.  Examples of such disclosures include summary plan descriptions, summaries of material modifications, summary annual reports, pension benefit statements, annual funding notices, qualified default investment alternative (QDIA) notices, blackout notices and participant fee disclosures.  Delivery methods for ERISA disclosures must be reasonably calculated to ensure that workers actually receive the disclosures. Under prior DOL electronic disclosure rules, plan administrators were limited to using a regulatory safe harbor established in 2002 which requires employer-provided email addresses and regular employer-provided Internet access or an election by the plan participant or beneficiary to receive required disclosures electronically.

Formal administrative guidance on approved electronic delivery methods hasn’t kept up with the evolution of Internet availability and the prevalence of electronic communications.  Therefore, some plan sponsors and plan administrators have been reluctant to embrace electronic delivery in light of questions as to whether an electronic method of communications would satisfy standards for delivery.  In response, the DOL published a proposed regulation in October 2019 and sought public comment. 

New voluntary safe harbor effective immediately

The final regulation establishes a new, voluntary safe harbor for retirement plan administrators who want to use electronic media as a default to furnish covered documents to covered individuals, rather than sending potentially large volumes of paper documents through the mail.  Retirement plan administrators who comply with the safe harbor will be deemed to have satisfied their ERISA obligations to furnish required documents to individuals who are covered by the new safe harbor.  The new safe harbor permits both website posting (whereby plan administrators are allowed to post covered documents on a website if appropriate notifications are sent and other technical requirements are satisfied) or email delivery (with required content in the body of the email or as an attachment).

While the new safe harbor is effective 60 days after publication of the final regulations in the Federal Register, the DOL’s current enforcement policy allows retirement plans to begin using the new regulatory safe harbor immediately.

Scope of the new safe harbor electronic delivery method

Importantly, the new safe harbor applies only to retirement plan communications.  Health and other welfare benefit plans are not covered (although the new regulation reserves a placeholder for issuing standards relating to welfare benefit plans in the future).  However, administrators of 401(k) plans, pension plans, and other ERISA-covered retirement plans may use the new safe harbor for any document or information that the administrator is required to furnish to a covered individual under Title I of ERISA (other than documents or information required to be furnished only upon request). The safe harbor does not apply to participant notices required by the Internal Revenue Code, although the DOL coordinated its rule with the IRS.  The IRS will issue its own guidance on electronic disclosure.

Also, retirement plans may use the new safe harbor electronic delivery method only for participants, beneficiaries, and other individuals entitled to receive covered documents who meet the regulation’s definition of a "covered individual." To satisfy this requirement, the individual must have provided the employer, plan sponsor or administrator, or an appropriate designee with an electronic address (eg, email address) or Internet-connected mobile-computing-device (eg, smartphone) number, at which the individual may receive a written notice of Internet availability or an email upon plan participation, as a condition of employment, or otherwise. Plan administrators may also rely on an electronic address assigned by an employer to an employee for employment-related purposes.  

In all cases, however, covered individuals must be allowed the right to opt out of electronic delivery at any time and to receive paper copies of required communications without charge upon request.  The plan administrator must establish and maintain reasonable procedures governing such requests or elections. The regulations further specify that procedures that are administered in a way that unduly inhibits or hampers the initiation or processing of such a request or election will not be considered reasonable procedures.

Implementation and ongoing administrative procedures

The new safe harbor electronic delivery alternatives do not replace the prior 2002 electronic delivery safe harbor.  The 2002 safe harbor remains in place as another option for plan administrators.  Employers and plan administrators who wish to rely on the new electronic delivery methods will need to implement procedures likely in tandem with their recordkeepers or third-party administrators for maintaining records and satisfying other technical components of the regulations.

Initial notification on paper. Before the plan administrator may rely on the safe harbor with respect to an individual, that individual must be informed, on paper and written in a manner calculated to be understood by the average plan participant, that covered documents will be furnished electronically to an electronic address; identification of the electronic address that will be used; any instructions necessary to access the covered documents; a cautionary statement that the covered document is not required to be available on the website for more than one year or, if later, after it is superseded by a subsequent version of the covered document; statements of the individual’s rights to opt out of electronic delivery and to request paper versions of covered documents, free of charge, and an explanation of how to exercise these rights. 

Notices of Internet availability. Generally, as documents become available on the Internet website, the administrator must furnish covered individuals with a notice of Internet availability (NOIA) that includes content specified in the regulation. To avoid numerous repetitive communications, the final rule permits annual combined NOIAs to include information applicable to summary plan descriptions; information required to be furnished annually (rather than upon the occurrence of a particular event) and which does not require action by a covered individual by a particular deadline; and other information as may be subsequently authorized by the DOL or IRS.

The NOIA for each document (and an annual combined NOIA) must be furnished to an individual’s email address or smartphone number specified in the initial notification, and must be furnished separately from any other documents or information (except as permitted by the safe harbor’s allowance for annual combined NOIAs). The NOIA must be written in a manner calculated to be understood by the average plan participant and is only allowed to contain the content specified by the regulation (although pictures, logos, or similar design elements are permitted as long as the design is not inaccurate or misleading and the required content is clear). 

Each NOIA is required to include a prominent statement − such as a title, legend, or subject line − that reads "Disclosure About Your Retirement Plan"; a statement that reads: "Important information about your retirement plan is now available. Please review this information."; an identification of the covered document by name (eg, "your Quarterly Benefit Statement is now available") and a brief description of the covered document if identification only by name would not reasonably convey the nature of the covered document; the Internet website address, or a hyperlink to such address, where the covered document is available which is sufficiently specific to provide ready access to the covered document or leads the covered individual to a login page that provides (or immediately after a covered individual logs on provides) a prominent link to the covered document; a statement of the individual’s rights to opt out and to request and obtain a paper version of a covered document, free of charge, and an explanation of how to exercise these rights; a cautionary statement that the covered document is not required to be available on the website for more than one year (or, if later, after it is superseded by a subsequent version of the covered document); and a telephone number to contact the plan administrator or other designated representative.  The NOIA may contain a statement regarding whether action by the individual is invited or required, and if so, how to take such action, provided that such statement is not inaccurate or misleading.

Website availability and retention. Reliance on the new safe harbor requires that the administrator take measures reasonably calculated to ensure that covered documents are available on the website no later than the date required by ERISA for furnishing such information or document, and that covered documents remain available on the website for at least one year after the date the covered document is made available on the website, or if later, the date the document or information is superseded by a subsequent version. For this purpose,  website means an Internet website, or other Internet or electronic-based information repository to which covered individuals have reasonable access, and that protects the confidentiality of personal information relating to any covered individual.

The covered document must be presented on the website in a manner calculated to be understood by the average plan participant, in a widely-available format or formats that are suitable to be both read online and printed clearly on paper, and that can be downloaded or permanently retained by the individual electronically. The electronic document must also be searchable by numbers, letters, or words.

Maintenance of email addresses. Plan administrators using the new electronic delivery safe harbor must implement reasonable administrative procedures designed to ensure the continued accuracy and availability of email addresses assigned to employees or to obtain a new email address for receipt of covered documents after an individual severs from employment.  

In addition, the system for furnishing a NOIA must alert the administrator of invalid or inoperable email addresses, and in such cases, the administrator must promptly take reasonable steps to cure the problem.  Examples for satisfying this burden include furnishing a NOIA to a secondary email address provided by the covered individual or obtaining a new email address for the covered individual. Alternatively, the administrator may treat the covered individual for whom an email address is no longer valid as opting out of electronic delivery, and in such cases, the individual must be provided a paper copy of the document identified in the undeliverable NOIA as soon as is reasonably practicable.

Conclusion

The new safe harbor is welcome news for retirement plan sponsors and administrators.  As noted above, employers and plan administrators who wish to rely on the new electronic delivery methods will need to coordinate with their recordkeepers or third-party administrators to implement the new method of electronic delivery.

To learn more about these and other employee benefit questions, please contact any member of the DLA Piper Employee Benefits and Executive Compensation group or your DLA Piper relationship attorney.

Sherry Klenk is a consultant with DLA Piper’s Employee Benefits and Executive Compensation group, based in Chicago. Reach her at sherry.klenk@dlapiper.com.