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DOL Proposes New Default Electronic Disclosure Safe Harbor

The Department of Labor (DOL) has issued proposed regulations providing a safe harbor under which employers would be able to automatically provide required notices online, as long as participants and beneficiaries with valid electronic addresses (e.g., email addresses) are provided a notice and are given the ability to opt out of electronic delivery and receive the notices in paper form.

Notice Requirement

  • Retirement plan administrators may satisfy their obligation to furnish ERISA-required disclosures by making the information accessible online and by furnishing to participants and beneficiaries an electronic “notice of internet availability” of these disclosures.

  • The notice should be sent to the electronic address of the participant.

  • The notice must include, among other things, a brief description of the document being posted online, a website address where the document is posted, and instructions for requesting a free paper copy or electing paper delivery in the future.

  • The electronic notice generally must be sent each time a retirement plan disclosure is posted to the internet website.

  • The notice may incorporate or combine other notices of internet availability in limited circumstances.

Safeguards to Ensure Receipt of Notices

  • A plan administrator must ensure that the system for furnishing the notice of internet availability is designed to alert the administrator of an invalid or inoperable electronic address.

  • In the event an administrator is alerted to an invalid address, the administrator must treat the individual as opting out of electronic delivery if the problem is not promptly cured.

  • When an employee terminates employment, the plan administrator must take steps to ensure the continued accuracy of the electronic address on file.

The DOL is currently requesting comments on the proposal and the rules will be effective 60 days after they are finalized.

© Boutwell Fay LLP 2019, All Rights Reserved.This handout is for information purposes only, and may constitute attorney advertising. It should not be construed as legal advice and does not create an attorney-client relationship. If you have questions or would like our advice with respect to any of this information, please contact us.The information contained in this article is effective as of October 31, 2019.

Benefits Law in the Wild Wild West (1)
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