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Explains the Department of Labor safe harbor for sending ERISA documents electronically instead of on paper. Covers ensuring receipt, protecting personal information, the required notice and providing free paper copies on request.
You can deliver ERISA documents electronically under the DOL safe harbor if you ensure actual receipt, protect personal information, meet ERISA's timing, format and content rules, give a notice with each disclosure, and provide free paper copies on request.
In general, ERISA documents must be furnished to participants and other beneficiaries in a way reasonably calculated to ensure their receipt. The regulations on electronic disclosure are a "safe harbor", meaning that if their requirements are met, the disclosure will be considered to have been made in a manner reasonably calculated to ensure actual receipt.
Note: Plans may satisfy ERISA's rules by following other methods of distribution, but following the safe harbor will ensure compliance. The responsibility to properly distribute ERISA documents falls on the plan administrator, not a third-party provider who creates such documentation.
Under the DOL safe harbor, any documents required to be provided under Title I of ERISA may be disclosed electronically. This includes:
Note: Different distribution rules apply to the electronic delivery of these notices, and those rules are not discussed here:
Electronic disclosure may be made to:
First, a plan administrator must decide what kind of media they want to use to distribute their documents electronically. The safe harbor is not limited to any particular kind of electronic disclosure, and there are a wide variety of appropriate disclosure methods, including delivery of documents through email, attachment to an email, or use of a company website.
If the plan sponsor is relying on the electronic disclosure safe harbor, all of the following requirements must be met:
The DOL's safe harbor allows employers to provide ERISA-required notices by posting them on a company website, provided the employer complies with all of the requirements for electronic delivery. This means the employer must provide a written or electronic notice to plan participants and beneficiaries when the document is posted, describing the document's significance and the right to receive a paper copy.
Employers must also take steps to ensure actual receipt of the document. Examples of actions that may constitute appropriate and necessary measures to ensure receipt include:
After deciding what kind of electronic media to use for distribution, plan administrators must determine whether consent is required from the plan participants before such disclosure is effective. Whether consent is required depends on the type of participant (for example, active employee or COBRA qualified beneficiary) and their level of computer access through their employment duties.
An employee has work-related computer access if they are able to effectively access the electronic documents at the location where they are expected to perform their duties, and accessing the electronic system is part of their employment duties. The DOL has specifically stated that employees whose only access to the employer's network is through a computer kiosk in a common area will not qualify as Wired at Work.
Where affirmative consent is required, the individual must affirmatively consent in a manner that reasonably demonstrates his or her ability to access information in the electronic form to be used. The individual must also provide an address for receipt of the electronically furnished documents. Such consent may be acquired electronically.
For any disclosure that requires consent, notice must be provided to the participant with a statement explaining:
Important: Notice must be provided each time an electronic disclosure is made.
Yes. Some individuals may not fall under the safe harbor's requirements described above. In these cases, the individuals must be furnished with paper copies of necessary documents. In addition, paper copies must always be available for all participants upon request.
The responsibility to properly distribute ERISA documents falls on the plan administrator, not on a third-party provider who creates the documentation. Plans may satisfy ERISA's rules by following other methods of distribution, but following the safe harbor will ensure compliance.
Under the DOL safe harbor, any documents required to be provided under Title I of ERISA may be disclosed electronically, including Summary Plan Descriptions, Summaries of Material Modifications, Summary Annual Reports, QMCSO notices, HIPAA certificates of creditable coverage, certain notices of COBRA rights, the annual WHCRA, CHIP and Medicare Part D notices, the HIPAA special enrollment notice and the Exchange notice. Different distribution rules apply to the COBRA General Notice, the Summary of Benefits and Coverage notice and the HIPAA privacy notice.
Not always. Electronic disclosure to a participant who has work-related computer access meets the safe harbor without the participant's specific consent, which is known as assumed consent. An employer must obtain written affirmative consent before electronically delivering ERISA disclosures to participants, beneficiaries and other plan participants who do not have work-related access to a computer.
An employee has work-related computer access — is "Wired at Work" — if they are able to effectively access the electronic documents at the location where they are expected to perform their duties and accessing the electronic system is part of their employment duties. The DOL has specifically stated that employees whose only access to the employer's network is through a computer kiosk in a common area will not qualify as Wired at Work.
Yes. Some individuals may not fall under the safe harbor's requirements, and those individuals must be furnished with paper copies of necessary documents. In addition, paper copies must always be available for all participants upon request, without charge.