By Barry Fields, Vice President – Employee Benefits
Regulations For Electronic Distribution of ERISA Disclosures
With the recent increase in audits by the Department of Labor (DOL), one of the most frequently asked questions JGS Insurance receives is under what circumstances can documents be distributed electronically by email, by company intranet and the like.
DOL regulations contain a safe harbor under which employee plans may use electronic means to distribute certain documents and other information required under the Employee Retirement Income Security Act of 1974 (ERISA).
The following documents and notices may be distributed electronically if certain conditions (described below) are met:
Summary Plan Description (SPD)
Summary of Material Modification (SMM)
Summary Annual Report (SAR)
Summary of Benefits and Coverage (SBC)
Notice of Health Insurance Marketplace Coverage Options
Documents can be sent to an employee’s work email address without consent as long as all of the following is in place:
- The work email is specifically for, and used by, the employee on a regular basis as a part of daily work responsibilities.
- An actual receipt of transmitted information is confirmed such as through a failure-to-deliver notice, a periodic review or survey of employees to confirm materials are being received, or a confirmation receipt received by the sender from the recipient.
- The email includes a statement as to the significance of the document.
- The email explains the right to request a paper version at no cost and provides instructions on how to request a paper copy.
- The notice content does not contain any identifiable protected personal information.
If employees do not have a primary work-issued email address, they may elect, with written consent, to provide the employer with a personal email address for receipt of specific electronic notice. This consent must be obtained yearly and must include the following:
- The types of documents to which the consent would apply.
- The fact that consent can be withdrawn at any time without charge.
- The procedures for withdrawing consent and for updating the participant’s, beneficiary’s or other individual’s address for receipt of electronically furnished documents or other information.
- The right to request and obtain a paper version of an electronically furnished document including whether the paper version will be provided free of charge.
- Information on any hardware and software requirements for accessing and retaining the documents.
Employers may post documents to a designated site on the internet. Under this method, the employer must ensure employees have the ability to access these documents at will during and after business hours. Employers must provide a separate notification sent via an electronic or nonelectronic method to each employee notifying them of:
- the document’s availability;
- the importance of the information contained in the documents; and
- the right to receive this information by another acceptable means, nonelectronic or electronic, as described above.
JGS Insurance can provide you with sample documents that address a variety of these circumstances such as the Consent for Electronic Delivery, Email Notice of Important Document, and an Acknowledgment of Receipt of Important Documents.