Safe Harbor for Electronic Distribution of ERISA Documents

We’re often asked if ERISA documents, such as the plan document and summary plan description (SPD) can be distributed electronically.  These documents are pretty long, so printing multiple copies isn’t ideal.

The short answer to the questionis yes, but you’ve got to follow the safe harbor rules established by the Department of Labor.  There are two parts to the answer, depending on whether or not employees have work-related computer access.

For employees with work-related computer access:

ERISA disclosures can be distributed electronically as long as employees:

  • have the ability to access the electronic documents at a location where job duties are expected to be performed; and
  • are expected to have access to the employer’s electronic information system as an integral part of their job.

A computer that’s “available” to employees in some common area in the workspace doesn’t count.

For employees without work-related computer access:

It’s permissible to distribute the documents to these employees as long as they provide written consent ahead of time.  Before consent is given, the employee must be given clear instructions about:

  • the type of documents to which consent will apply
  • the ability to withdraw consent at any time without a charge
  • the procedures for withdrawing consent and updating of electronic addresses
  • the right to ask for a paper copy of the documents free of charge
  • computer and software requirements to make sure the documents can be delivered

If distribution will be made through the internet, the consent must demonstrate the employee’s ability to access the internet.

If documents are delivered electronically, the employer needs to establish a system to make sure the materials are received.  There are ways to accomplish this electronically, but another approach might be to ask the employee to sign a delivery receipt.

One of our clients began electronic delivery last year, and they needed permission from dozens of employees.  Electronic distribution consent forms were circulated, and several employees ended up requesting paper copies.  This was a bit surprising to us, but the majority were fine with e-delivery.  In the end, a lot of paper was still saved.


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