401(k) Plans: Electronic Distribution

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The Department of Labor (“DOL”) has established 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.

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.

ERISA Disclosures

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. ERISA Title I retirement plan disclosures include:

Delivery Methods

E-Delivery Safe Harbor Under Final DOL Regulations

The Final DOL Regulations established a new, voluntary safe harbor for sponsors of 401(k)’s and other retirement plans who wish to use electronic media as the default means of furnishing participants and beneficiaries with copies of their ERISA-required retirement plan disclosures. Importantly, recipients always have the right to opt out of electronic delivery if they prefer to receive paper notices.

Employers who make use of the new safe harbor receive certain legal protections — for example, protection from the substantial monetary penalties that may be imposed for with ERISA’s notice and disclosure provisions – assuming the guidelines spelled out in the Final DOL Regulations are followed to the letter.

Summary of Conditions of 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 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

Safeguards 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

Prior DOL regulations (in effect before the 2020 Final DOL Regulations discussed above) provide examples of acceptable distribution methods. These “safe harbors” are described below. The following provisions are still valid, and 401(k) plan sponsors may choose to follow them in lieu of the provisions set forth in the Final DOL Regulations discussed previously.

Please note that these provisions must comply with requirements described in the next section:

Documents delivered electronically must be furnished in a manner consistent with the applicable style, format, and content requirements required by ERISA.  However, the DOL has indicated that the appearance of paper and electronic versions need not be identical.

In addition, when personal information pertaining to an individual’s benefits or accounts is transmitted electronically, steps must be taken to protect the confidentiality of the information.


The electronic safe harbor provisions must comply with the requirements described below.

The plan administrator must take steps to ensure the actual receipt of information that is distributed electronically.

Possible steps include:

The plan administrator must provide notice to each recipient at the time the electronic documents are furnished regarding the significance of the document.


Please note: An annual or periodic notice is not sufficient.

Paper versions of the electronic documents must be available upon request.  In addition, the paper copies must be provided at no charge if the document in question must otherwise be provided at no charge.

See Electronic Delivery Rules for a printable summary of the Electronic Delivery Rules.

Recipient Requirements

Plan administrators may electronically distribute ERISA disclosures to recipients provided that:

Computer Access

Employees must meet the following requirements to qualify under this provision:

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:

Without Computer Access

Employees/Individuals without work related computer access may affirmatively consent to the electronic delivery of materials.

A consent must include a clear and conspicuous statement that explains:   

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 address for delivery of documents.

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).


Can benefit and claim determinations be provided electronically?

Yes. The regulations permit benefit and claims determinations related to a specific individual to 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 specific 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 e-mail, attachment to an e-mail, posting documents on a company Web site, or on CD-ROM or DVD. Under the Final DOL Regulations, however, there are two methods of fulfilling the default e-delivery safe harbor – posting covered documents to a dedicated plan website, or direct e-mailing of covered documents to recipients (see above).

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

Yes; however, the plan administrator must also send a notice, either electronically or in paper form, that notifies the employee that the covered document is available on the website. The notice must meet specific requirements, as set forth in the Final DOL Regulations (see above).

Do the DOL Final Regulations apply to health and welfare plans?

The Final Regulations make clear that they do not apply to employee welfare benefit plans – for example, group health plans or plans providing group disability benefits. The DOL believes that group health plan disclosures present unique issues and challenges that warrant further consideration before extending the default rule to such plans. For the rules regarding electronic disclosure for health and welfare plans, see “Geek Out” article “Electronic Distribution.”