401(k) Plan Delivery Methods

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Where distribution of materials to retirement plan (including 401(k) plan) participants is required under ERISA, the materials must be furnished in a way that is reasonably calculated to ensure delivery and to likely reach all plan participants and beneficiaries. Although the Department of Labor (DOL) provides “safe harbor” distributhods, the employer may choose other methods as long as they satisfy this requirement.

The DOL has specified the “safe harbor” distribution methods outlined below as meeting ERISA’s distribution requirements. Please note that the DOL does not require that an employer prove the actual receipt by a recipient, just that the delivery method is likely to result in the receipt of the materials. In addition, the employer may use different delivery methods for different classes of employees. For example, it may choose to:

  • Hand deliver materials to full time employees
  • Electronically distribute materials to exempt employees
  • Mail materials to retirees or COBRA qualified beneficiaries
ERISA Title I disclosures include:

  • Summary Plan Descriptions (SPD)
  • Summaries of material modifications
  • Summary annual reports
  • COBRA notifications
  • Qualified medical child support order notices
  • HIPAA certificates of creditable coverage


Paper Deliver of Materials

The following paper delivery methods are specified by the DOL as consistent with the general requirement that materials be furnished by a method that is reasonably calculated to ensure actual receipt.

1. U.S. Mail

2. Intra-Office Mail or Inserts

Materials may be provided as a special insert to a company publication provided that:

3. Hand Delivery

Although specified as a safe harbor delivery method, the regulations do not specify what constitutes hand delivery. If an employer hand delivers material, it should be prepared to prove delivery, which may consist of:

Simply placing the material in a location that is frequented by eligible participants is NOT an acceptable method.

Electronic Delivery of Materials

The DOL has established new rules under ERISA concerning the distribution of various disclosures required by ERISA to employees and participants in retirement plans, including 401(k) plans, as well as to retirement plan beneficiaries outside of the work place. These rules establish various safe harbors for both electronic and paper distribution of materials. DOL regulations allow plan administrations to electronically send all retirement plan disclosures required under Title I of ERISA.

E-Delivery Safe Harbor Under Final DOL Regulations

Although electronic disclosures have generally been permissible since 2002, Final DOL Regulations issued on May 21, 2020, established a safe harbor that permits 401(k) to use electronic methods as the default (i.e., regular) means of disseminating most required notices and disclosures required for retirement plans under Title I of ERISA.

The Final DOL Regulations allow 401(k) plan administrators to electronically send all disclosures required under Title I of ERISA for retirement plans as the default means of distribution, provided certain requirements, including measures meant to protect participant rights, are met. Importantly, recipients always have the right to opt out of electronic delivery if they prefer to receive paper notices.

Summary of Conditions for Meeting Safe Harbor

Generally stated, there are two ways in which a 401(k) plan sponsor may meet the new default electronic delivery safe harbor – either through posting covered documents to an internet website devoted to that purpose, or by direct e-mailing of covered documents to covered individuals.

For this purpose, a “covered individual” is:

Conditions for Safe Harbor Method I – Use of Internet Website for Posting Covered Documents

Generally stated, the safe harbor method for internet websites is satisfied if the following conditions are met:

Standards for Internet Websites

The Final DOL Regulations establish the following standards for internet websites:

Participants’ Right to Paper Copies or to Opt-Out of Electronic Delivery

Under the Final DOL Regulations, 401(k) plan administrators must maintain reasonable procedures to ensure that covered individuals retain the rights to:

Conditions for Safe Harbor Method II – Direct E-Mailing of Covered Documents

The Final DOL Regulations provide that, as an alternative to posting covered documents on a dedicated plan website, a plan administrator may elect to satisfy the ERISA participant disclosure retirements by directly furnishing a covered document to a covered individual by sending it to a previously provided e-mail address, assuming the following conditions are met:

Conditions Applicable to Both Safe Harbor Methods

Safeguard Designed to Detect Invalid or Inoperable E-mail Address

Plans must have a system designed to alert the plan administrator or service provider of a covered individual’s invalid or inoperable electronic address. If an e-mail address is identified as invalid or inoperable, then the plan must promptly take reasonable steps to cure the problem, such as resending the covered document to any secondary email address on file.

Special Procedures Upon Separation from Employment

When an employee leaves his or her job, 401(k) plan administrators must take active steps to ensure the continued accuracy of the electronic address on file at the time of separation, to ensure continued access of either the notice of internet availability or the covered documents themselves, as applicable.

Previous Electronic Distribution Safe Harbor

Electronic Delivery Methods  The following electronic delivery methods are specified by the DOL as consistent with the general requirement that materials be furnished by a method that is reasonably calculated to ensure actual receipt.

To comply with this safe harbor, the employer must:

Participant Consent  Depending on the situations, electronic delivery may require prior consent from the participant.

Without Prior Consent

With Prior Consent 

Consent must include the following information:

Home Office Employees  Employees working out of a home office will fall under this provision provided that they meet the requirements above and that the home office is a location where the employment duties could be reasonably performed and that access to the employer’s computer system is an integral part of the employee’s duties. If the employees meet the criteria above, they DO NOT have to:

No Computer Access  Employees/Individuals without work related computer access may affirmatively consent to the electronic delivery of materials.  The consent must include the same information outlined above.  Note: The plan administrator is generally not required to distribute SPDs, SMMs, or SARs to each beneficiary under the plan. Therefore, the plan administrator is not required to obtain consent from each beneficiary under the plan (e.g. spouses and dependents).

If delivery is through the Internet or other electronic communication system, the individual must affirmatively consent in a manner that reasonably demonstrates the individual’s ability to access information in the electronic format that will be used. Requiring that the consents be furnished back to the employer electronically is a reasonable demonstration of the individual’s access ability. 

An individual must provide an electronic address for delivery of documents.


Can benefit and claim determinations be provided electronically? 

Yes. The regulations allow that benefit and claims determinations related to a specific individual may be communicated electronically to that individual.  However, if the information contained within the communication is confidential in nature, the plan administrator must take appropriate and necessary steps to ensure that the information remains confidential.  The regulations do not provide any guidance on what measures must be used to protect the confidentiality of this information.

What forms of electronic disclosure are permissible?

The regulations do not require the use of any specific form of electronic media.  Examples of permissible forms of electronic disclosure include delivery of documents by email, attachment to an email, posting documents on a company Web site, or on CD-ROM or DVD.

May a plan administrator electronically deliver ERISA notices by placing the information on a company Web site?

Not by itself.  The plan administrator must also send a notice, either electronically or in paper form, that notifies the employee that the SPD is available on the Web site.

Click here for a printable summary of the electronic delivery rules.

The paper and electronic distribution methods described above are not intended to be exclusive and employers may use other distribution methods. Whatever method is used, employers should be prepared to prove in individual cases that information was provided.

Additional Resources

Reporting and Disclosure Guide for Employee Benefit Plans

Federal Register: Rules Relating to Use of Electronic Communication