Providing your employees and plan participants timely access to retirement plan documents is required by law. In May 2020, the Department of Labor (DOL) finally agreed the internet is here to stay and, at long last, has made it easier to fulfill that requirement electronically. With the rise in technology and the use of electronic devices (not to mention how the COVID-19 pandemic has affected the way many of us perform work!), the DOL has learned to appreciate the benefits that come with recognizing electronic delivery as an acceptable medium for communicating these required documents to employees. While many  are required to be sent to participants , the DOL's new rule allowing for electronic delivery only applies to those they require.  Most retirement plan notices and disclosures are described below and those covered by this new rule are marked with an asterisk.  The IRS and Department of Treasury have indicated they intend to provide more guidance in the future about the electronic disclosure of the notices they oversee.

The Department of Labor (DOL) released its final ruling effective July 26, 2020 when Plan administrators will be able to depend on the new rules regarding the electronic delivery.  Combine the electronic delivery options with the tried-and-true physical delivery options as well as each participant’s prerogative for receipt, and sponsors will be able to develop a strategy that works best for them, the plan, its participants, and participant beneficiaries.  Regardless of delivery method, Plan administrators must still take measures to reasonably ensure the confidentiality of personal information is protected, the documents are received and reviewed, and the process remains free of charge to the participant.

What documents are required to be provided?

The following documents and notices regarding employee retirement pension benefit plans must each be written in a manner and format that would be understood by the average participant, be searchable by number, letters, or words, include the plan administrator’s telephone number and contact information, and accompanied by a brief description:

• Annually:
  • Investment provider fee disclosure(s)* (newly available for electronic transmission)
  • Summary Annual Report (SAR)* or Annual Funding Notice (AFN)* – generally the date the Form 5500 is filed but no later than 9 months after the close of the applicable plan year or 2 months after the Form 5500 extended due date
  • Safe Harbor or Automatic Enrollment Notices (current eligible employees only) – 30 days before beginning of plan year
    • Safe Harbor "Maybe" Plans require a Supplemental Notice is provided if plan seeks safe harbor protections any given year.  The Supplemental Notice needs to be provided 30-90 days before the start of a new plan year and may be delivered together with next year's Safe Harbor "Maybe" Notice.
    • Safe Harbor Non-elective Plans are no longer required to provide an annual notice, however, doing so allows the plan to retain its ACP test safe harbor
  • Participant benefit statements* (may be provided by a trust recordkeeper/custodian more frequently)
• 30 days prior to initial eligibility for the plan or as explicitly requested:
  • Summary Plan Description (SPD)*
  • Safe Harbor or Automatic Enrollment Notices (current eligible employees only)
• As applicable:
  • Summary(ies) of Material Modification (SMM)* – 240 days after change is effective or amendment is adopted
  • Notice of reduced benefits to a pension plan* – generally 45 days before benefit reduction is effective
  • Notice for an early retirement subsidy in a merger or acquisition – 30 days before transaction
  • Notice of plan termination* – 30 days before cessation of deferrals
  • Blackout notice of a period of at least 3 days where participants will not be able to make investment modification or request distribution* – 30 days before start of blackout period
• Upon distribution of account:
  • For plans that include a Qualified Joint and Survivor Annuity (QJSA) only (not typical for 401(k) plans), a notice of the QJSA benefit options – 30 days before the distribution of benefits
• Only when explicitly requested:
  • Copy of Plan Documents

Who has to receive these required documents?

• Plan participants and their beneficiaries
• Eligible employees who have the option to participate

How to may I send these out?

• Mailed
• Placed in office cubbies
• Posted in public location in the office
• Emailed:
  • Work email, provided that one exists for purposes other than communicating these notices and using a computer is a part of their daily work (not really an option, then, for former employees or beneficiaries)
  • Personal email, provided that explicit, revocable, written authorization has been provided by the participant
  • Smart phone, provided that explicit, revocable, written authorization has been provided by the participant
  • Employee may opt out of this communication option
• Posted to company intranet or dedicated employee portal:
  • Posted no later than the date a hardcopy would have been required to be distributed, and
    • Remain available for 1 year from posting, or
    • Superseded by a subsequent version (and timer starts again) and participants must be notified when each shall expire

How do I start leveraging electronic delivery?

• An initial physical notice is sent to each participant informing them of electronic delivery which contains:
  1. The email address that will be used for electronic communication
  2. Instructions how to access documents
  3. Timeframe of document access, particularly whether each will
     • Remain available for 1 year from posting, or
     • Be annually superseded by subsequent versions
  4. The right to opt-out
• Notices of Internet Availability (NOIA):
  • Required to be provided each time new documents are issued, the NOIA shall identify the newly available document and briefly summarize what the document is meant to communicate to the participant.  However, consolidated NOIA to communicate multiple documents may be issued as infrequently as every 14 months to notify participants that new documents are available electronically.