Electronic Delivery Rules for Benefit Plan Communications

In order for the safe harbor to apply, the recipient must fall into one of the following categories:

• “Wired at Work:” Access to the employer’s electronic information system is an integral part of his/her duties as an employee, and he/she has the ability to access electronic documents at any location where he/she is reasonably expected to perform his or her duties as an employee. This standard effectively requires that the individual have access to a personal computer workstation or some comparable level of technology in the course of his/her employment, since the DOL has said that providing an electronic document through a common area computer, such as a kiosk, would not satisfy the safe harbor.
• Provision of Affirmative Consent: He/she has consented to receive disclosure in electronic form in accordance with DOL consent requirements. The consent requirements state that the recipient must:
  • Have affirmatively consented (electronically or non-electronically) to electronic disclosure and not have withdrawn the consent.
  • Have reasonably demonstrated (via an electronic consent process or electronic affirmation of consent) the ability to access information in the relevant electronic form.
  • Have provided an address for receipt of the electronic document.
  • Prior to consenting, have been provided with:
    • An explanation of the type of documents to be provided electronically and of the right to withdraw consent to electronic disclosure at any time.
    • Information on how to withdraw consent or update contact information.
    • A statement of the right to request a paper copy (and whether that paper copy will be provided free of charge).
    • A description of the hardware and software requirements for accessing the documents. If the hardware/software requirements change in a way that creates a material risk that the recipient will not be able to access or retain documents, the consenting recipient must be provided with an explanation of the change, must be given the right to withdraw consent, and must again consent to electronic disclosure.

If the individual is eligible for electronic disclosure under one of these two safe harbors, communications can be provided electronically under the following rules:

• The electronic document must comply with all applicable legal requirements regarding style, format and content. For example, an electronic SPD must comply with the requirement that it be written in a manner calculated to be understood by the average plan participant and contain all the information that the regulations require an SPD to contain.
• If it is not reasonably evident from the transmittal, the electronic system must alert the recipient to the significance of the information contained in the electronic document. For example, in the case of an SMM posted to a website, the plan administrator might send an email stating that, “A Summary of Material Modifications for [plan name] is available at [link/URL]. This Summary of Material Modifications updates your Summary Plan Description to reflect changes in your Plan benefits. You should read this document carefully, and file it with your Summary Plan Description in a safe place.”
• The electronic system must be reasonably calculated to ensure actual receipt of the document. For example, this could be accomplished by use of return-receipt notice or undeliverable email features, or by conducting periodic surveys regarding receipt.
• The distribution must protect the confidentiality of personal information, if applicable. For example, if a plan allows participants to obtain benefit statements online, that function should require use of a personal password or PIN before a statement is made available, and should take appropriate precautions against efforts to hack the system.
• Upon request, the participant must be furnished with a paper version of the electronic document. The paper disclosure must be provided free of charge if the disclosure is a communication required to be furnished free of charge by ERISA (such as a participant’s initial copy of an SPD). Individuals receiving electronic communications must be informed of this right.
• As noted above, for plan years beginning on or after January 1, 2026, at least one benefit statement must be provided in paper rather than electronic format each year in the case of defined contribution plan statements or once every three years in the case of the obligation to furnish defined benefit plan statements to active participants, unless additional requirements are satisfied.
  • For participants who first become eligible to participate in the plan, and any beneficiaries who first become eligible for benefits under the plan, on or after January 1, 2026, the 2026 proposed regulations require the plan administrator to send a one-time initial paper notice informing the recipient of the right to request paper copies of all disclosures required under Title I of ERISA before the electronic delivery of any benefit statement.
  • The DOL’s preamble to its proposed regulations notes specifically that these notice and opt-out right provisions do not apply to anyone who was already a participant or beneficiary entitled to benefits as of December 31, 2025. However, anyone who is covered by the 2002 “consent” safe harbor rather than being “wired at work” can effectively request all-paper disclosures by withdrawing consent to e-disclosure.
  • The DOL’s preamble also emphasizes that under the regulations as proposed, these obligations only apply if the regulatory safe harbor is being used to claim exemption from the paper statement requirement, observing that, “Thus, if a retirement plan furnishes, on paper, the pension benefit statement described in subparagraph (E) of section 105(a)(2) [of ERISA], the administrator of that plan would not be subject to the initial notice requirement…even if all other documents required to be disclosed under Title I of ERISA are furnished electronically using the 2002 safe harbor.”
  • The proposed regulations are not specific about how the option for defined benefit plans to furnish an annual notice of statement availability in lieu of providing an actual statement to all employed participants every three years will be affected by the “paper” requirement.
  • In response to inquiries received by the DOL concerning compliance with these proposed regulations, the DOL released a Field Assistance Bulletin on May 12, 2026, which outlines a temporary enforcement policy in effect until after the Department issues final regulations or other applicable administrative guidance. The policy states that, so long as plan administrators comply in good faith with a reasonable interpretation of the proposed regulations and ERISA Section 105(a)(2)(E), the Department will not take enforcement action against such plan administrators.
  • If the plan administrator is relying on the consent safe harbor, it can satisfy the requirement to provide an initial paper notice by providing a paper copy of the advance explanation and disclosure of rights already required by the rules for the consent safe harbor.

2020 DOL Electronic Safe Harbor

The 2020 regulations allow plan administrators who satisfy certain conditions to provide plan participants and beneficiaries in retirement plans with a notice that certain disclosures will be made available on a website, or be furnished via email. Participants who wish to continue receiving paper copies may continue to do so by requesting paper copies and opting out of electronic delivery entirely. At present, the 2020 safe harbor is not available for health and welfare plan participants, and is subject to restrictions if used to provide retirement plan benefit statements.
Before disclosures that are covered by the safe harbor can be provided electronically, the plan administrator must do the following:

• Have valid electronic contact information for the recipient that will allow receipt of the disclosures in the intended methodology of communication (e.g., an email address for email communications, or a mobile phone number for text messages, etc.), and that contact information must either have been provided by the recipient, or provided by the employer for work-related reasons (and not just for the disclosure of benefit plan information).
• Provide the intended disclosure recipient with a paper notice of the plan administrator’s intention to provide electronic benefit plan disclosures to the specified electronic address, and that notice must include:
  • Identification of the electronic contact address that will be used.
  • Instructions necessary to access the documents.
  • A statement that the disclosures are not required to be available on the plan’s website for more than a year (or, if later, until the date the disclosure is superseded by a later version).
  • An explanation of the right to request and receive a free paper copy of a disclosure and instructions on how to exercise this right.
  • An explanation of the right to opt out (free of charge) of electronic delivery altogether and instructions on how to exercise this right.
    • If documents are going to be provided via a website, mobile platform or similar mechanism, make sure the website/mobile platform/etc. will be able to retain the documents for at least a year (or until superseded, if later) and that it also will make the documents available for permanent electronic retention, protect confidential information, provide the documents in a widely available format that is suitable for both online and print reading and make the documents searchable (text must be searchable by numbers, letters and words).
    • If documents are going to be provided in the body of, or as attachments to, an email rather than via posting to a website, mobile platform or something similar, the plan administrator must ensure that the document format will be widely available and suitable for both online and print reading, allow permanent electronic retention of the document, make the documents searchable by numbers, letters and words, and protect confidential information.
    • Pursuant to the 2026 proposed regulations relating to the provision of benefit plan statements and implementing other statutorily required changes to the 2020 safe harbor:
      
      • The DOL has proposed amending the 2020 safe harbor to:
      • Require that plans using the 2020 safe harbor allow participants and beneficiaries to elect to have benefit statements normally required to be on paper to be furnished electronically instead, and provide the necessary instructions and contact information (including a telephone number) for participants and beneficiaries to exercise this right in the paper statement.
      • Prohibit plan administrators relying on the 2020 safe harbor from charging any fees for delivery of paper benefit statements (only one copy of other documents is required to be provided free of charge).
      • The 2020 safe harbor cannot be used to provide the mandatory paper benefit statement to anyone who has not affirmatively requested an e-statement in lieu of paper.