June 28, 2022

Volume XII, Number 179


June 28, 2022

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June 27, 2022

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Modernizing ERISA Disclosure Requirements

New Department of Labor Regulation Offers Additional Electronic Delivery Methods for Retirement Plans

A plan administrator is required to furnish ERISA-required notices and disclosures using a delivery method that is reasonably calculated to ensure actual receipt by participants, beneficiaries, and other individuals. Under regulations issued in 2002, the Department of Labor ("DOL") established a safe harbor for satisfying this requirement through the use of electronic media (e.g., email).

On May 27, 2020, the DOL published final regulations regarding a new, voluntary safe harbor for plan administrators of retirement plans to furnish notices and disclosures required under ERISA using electronic media as the default method of delivery. These final regulations became effective on July 27, 2020. The new safe harbor is in addition to the existing safe harbor for electronic delivery. However, unlike the existing safe harbor, the new safe harbor does not apply to health and welfare plans.

This client advisory summarizes both the existing and new safe harbors:

Existing Electronic Delivery Safe Harbor (Retirement and Welfare Plan Disclosures)

The 2002 safe harbor can be utilized for providing documents to only two types of individuals: (1) employees with the ability to effectively access electronic notices and disclosures at any location where they are reasonably expected to perform their employment duties and for whom access to the employer’s electronic information system is an integral part of those duties (so-called "wired at work" employees) and (2) individuals entitled to the applicable notices and disclosures under ERISA who affirmatively consent to receiving notices and disclosures electronically.

To satisfy the 2002 safe harbor for electronic delivery to such individuals, plan administrators are required to have appropriate and necessary measures in place which are reasonably calculated to ensure that the system for furnishing notices and disclosures results in actual receipt. Additionally, certain notice requirements are required at the time an electronic notice or disclosure is furnished, and an individual is required to be given the right to request and receive a paper copy of the electronic notice or disclosure free of charge.

New Electronic Delivery Safe Harbor (Retirement Plan Disclosures Only)

 Available Methods of Delivery

Under the new safe harbor, a plan administrator of a retirement plan may use one of two optional methods for furnishing certain retirement plan notices and disclosures electronically to covered individuals. A "covered individual" is defined more broadly under the new safe harbor than under the 2002 safe harbor and includes any individual entitled to the applicable notice or disclosure under ERISA who has a valid electronic address, as described below.

The delivery methods available under the new safe harbor are:

Website Posting ("Notice and Access") – The plan administrator may post the notices and disclosures on a website, provided that appropriate notice (referred to as "Notice of Internet Availability" or "NOIA") is furnished to the electronic addresses of the covered individuals. Notices and disclosures must remain on the designated website for the longer of one year or until the notices and disclosures are updated. Technical requirements must be satisfied both with respect to the website and to the format of the notice or disclosure.

Email Delivery – The plan administrator may send the notices and disclosures directly to the electronic addresses of covered individuals. The email must include "Disclosure About Your Retirement Plan" in the subject line, and the relevant notice or disclosure may either be attached to the email or included in the body of the email. Technical requirements must be satisfied with respect to the format of the notice or disclosure.

In either case, a covered individual must be given the right to opt out of electronic delivery and to receive a paper copy of any electronic notice or disclosure free of charge.

Valid Electronic Address

The requirement discussed above for a valid electronic address is satisfied if (1) the employer provides an electronic address to employees for an employment-related purpose (other than the delivery of notices and disclosures required by ERISA) or (2) an employee or beneficiary provides a personal electronic address to the employer or plan administrator, for example as part of the job application process or on other HR documents or plan enrollment paperwork.

For transition purposes, a plan administrator may rely on electronic addresses obtained prior to the effective date of the new safe harbor for which the source of the electronic addresses may be unknown, provided that the plan administrator acts reasonably, in good faith, and otherwise complies with the requirements of the new safe harbor.

Notice Requirements for New Safe Harbors

Prior to relying on either of the above new safe harbor delivery methods, a plan administrator must furnish each covered individual a paper notification that includes the following:

A statement that covered notices and disclosures will be furnished electronically. The electronic address that will be used for that individual.
Any instructions necessary to access the covered notices and disclosures.
The following three statements:

  • If the notice and access method will be used, a statement regarding the period that the covered notice or disclosure will be available on the website;
  • How to request a free paper version of a covered notice or disclosure; and
  • How to opt out of electronic delivery and receive only paper versions of covered notices and disclosures.

Additionally, under the notice and access delivery method, a NOIA must generally be furnished to the electronic addresses of the covered individuals at the time a notice or disclosure is made available on the website which includes the following:

  • A prominent statement of "Disclosure About Your Retirement Plan."
  • A statement that reads: ‘‘Important information about your retirement plan is now available. Please review this information.’’
  • The name of the notice or disclosure and, if the name alone would not reasonably convey the nature of the notice or disclosure, a brief description of the notice or disclosure.
  • The internet website address (or a hyperlink) where the notice or disclosure is available. A statement of the right to request and obtain a paper copy of the covered notice or disclosure free of charge and an explanation of how to exercise this right.
  • The three statements required to be included in the initial notice, described above.

The new safe harbor also permits a plan administrator to combine the NOIA for multiple notices and disclosures provided certain requirements are met.

System Checks for Electronic Addresses

In addition to the above notice requirements, a plan administrator must ensure that its electronic delivery system is designed to alert it if a participant’s electronic address is invalid or inoperable and take steps to fix any such addresses or provide paper copies.

For employer-assigned electronic addresses, the plan administrator is required to have measures in place that are reasonably calculated to ensure the continued accuracy and availability of such address following the individual's severance from employment, or have measures in place to obtain a new electronic address from terminated employees.

© 2007-2022 Hill Ward Henderson, All Rights ReservedNational Law Review, Volume X, Number 319

About this Author

Al Ward Executive Compensation Hill Ward Henderson

Al is Co-Chair of the firm's Executive Compensation & Employee Benefits practice. Al is recognized throughout the professional community for his depth of experience and knowledge in the employee benefits area. Prior to entering the practice of law, Al was an actuarial and employee benefits consultant for over eight years.

Al has focused for over four decades on executive compensation, employee benefits, trusts and taxation. He represents many clients including publicly traded and privately held, taxable or tax-...

Kirsten Vignec Employee Benefits Attorney HIll Ward Henderson

Kirsten is a Shareholder in the firm's Corporate & Tax Group and practice co-chair of the Executive Compensation & Employee Benefits Group. Kirsten’s practice involves employee benefit matters associated with the design and ongoing administration of executive deferred compensation plans, welfare benefit plans, Section 401(k) plans, profit sharing plans, and pension plans. Kirsten represents tax-exempt entities, for-profit, private, and publicly-traded companies.

Kirsten represents clients before the IRS, DOL, and the PBGC with respect to employee benefits matters.


Bret Hamlin employee benefit lawyer Hill Ward Henderson

Bret is a Shareholder in the firm’s Executive Compensation & Employee Benefits Group. He practices primarily in the areas of employee benefits, deferred compensation and trusts. Prior to entering the private practice of law, he provided plan design and consulting, third-party administration and investment, as well as retirement plan education services for clients. 

Bret represents large, medium and small employers with respect to many employee benefit matters, including both single employer and multiple employer qualified retirement plans, deferred...

Timothy P Zehnder employee lawyer Hill Ward Henderson

Tim is an Associate in the firm’s Executive Compensation & Employee Benefits Group. His practice focuses primarily on advising client employers (private and public, tax-exempt and for-profit) on a wide variety of compensation and benefits matters, including plan design, administration and termination, compliance with applicable laws (including the Internal Revenue Code, ERISA, HIPAA, and the Affordable Care Act), and resolution of compliance issues with the Internal Revenue Service, Department of Labor and Pension Benefit Guaranty Corporation.  Tim has experience assisting...

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