DOL Electronic Disclosure Guidance

The DOL Electronic Disclosure guidelines recognize two Safe Harbor methods and two supplemental methods. For an overview of electronic delivery allowed by both the DOL and the IRS, please refer to the Electronic Delivery of Participant Disclosure Materials post.

SAFE HARBOR METHODS OF ELECTRONIC DELIVERY

A Safe Harbor provides guidelines for complying with a legal requirement, such as the requirement to deliver information by a method “reasonably calculated to ensure receipt.” The DOL Electronic Disclosure guidelines recognize two  Safe Harbor categories: participants who “Affirmatively Consent” and employees who are “Wired at Work.” Providing computer kiosks does not make employees Wired at Work; rather access must be an integral part of the employee’s duty. Click here for details on Affirmative Consent versus Wired at Work.

If the plan administrator takes the steps required in the Safe Harbor, a notice or other electronic means will be considered to be delivered as if the information was sent by first class mail. Plan administrators may rely on the Electronic Disclosure Safe Harbor for delivering plan information if all of the following general requirements will be met:

  1. The electronic system used must be designed to reasonably assure actual receipt of the information. This may require periodic reviews or surveys to confirm receipt of the electronically delivered information. Also, the plan administrator should be aware of, and follow-up on, undelivered and, to the extent known, unopened e-mail.
  2. The system must be designed to protect the confidentiality of the personal information of the participant who receives the information.
  3. A participant receiving an electronically delivered document must, at the time the document is delivered, be provided with a notice explaining the importance of the document and the right to receive a paper copy of the disclosure.
  4. Electronically delivered documents must be prepared in the style and format applicable to the particular disclosure.
  5. Electronically delivered documents must contain all of the information required to be included in the particular disclosure.
  6. Upon request, the participant must be provided a paper version of the document.

Plan administrators have flexibility when providing information by electronic delivery if the above requirements are met. For example, a document may be included in the text of an e-mail or as an attachment. A plan administrator may also send, via electronic or paper mail, a link to the required information on a website.

DOL SUPPLEMENTARY METHODS OF ELECTRONIC DELIVERY

In addition to the above Safe Harbors, the DOL has issued supplementary methods that allow additional electronic delivery methods in certain situations: Assumed Consent and Continuous Access Website. The Electronic Disclosure Safe Harbor methods are applicable for all types of required plan information, but the supplementary methods may only be used for certain types of the plan information.

 

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