Delivery Methods

A. 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

• First Class Mail
• Second and Third Class Mail, provided that:
  • return and forwarding postage is guaranteed
  • address correction is requested
  • any material which is returned with an address correction shall be sent again by first-class mail or personally delivered to the participant at his or her work site.

2.     Intra-Office Mail or Inserts

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

• The mailing list is complete and up-to-date
• There is a notice displayed on the cover of the publication that the ERISA materials are inside
• Steps are taken to ensure delivery to anyone who does not receive the publication

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:

• An established policy requiring hand delivery of materials
• Communication of this policy to responsible employees
• Consistent records demonstrating that delivery was made

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

B. Electronic Delivery of Materials

 The regulations allow plan administrators to electronically send all disclosures required under Title I of ERISA.

• A paper version of the disclosure must always be provided upon request
• 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.

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.

• Email
• Attachment to email
• Posting documents to a company web site
• Provision of documents on magnetic disk, CD-ROM, or DVD

To comply with this safe harbor, the employer must:

• Take appropriate steps to ensure that the system for furnishing electronic documents results in actual receipt of the transmitted information (e.g., using return-receipt or notice of undelivered electronic mail features, or conducting periodic reviews or surveys to confirm receipt of the transmitted information);
• Provide notice to each recipient at the time the electronic documents are furnished regarding the significance of the document (e.g., when documents are delivered via email, the recipients should be able to distinguish them from all other items in their inbox, or if the documents are newly posted to an intranet site, the intended recipients must be alerted to the fact that they are now available);
• The regulations specifically note that merely making documents available in a location frequented by participants, such as at a computer kiosk located in a workplace, does not sufficiently ensure actual receipt, even if the participants are notified that the documents may be obtained at that location; and
• If the document includes protected health information (e.g., the electronic delivery of benefit explanations or claims information), the employer must take steps to assure compliance with HIPAA and other applicable laws governing the privacy and security of such information.

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

Without Prior Consent

• Participant has the ability to effectively access documents furnished in electronic form at any location where the participant is reasonably expected to perform his or her duties as an employee; and
• Participant’s access to the employer’s electronic information system is an integral part of those duties.

With Prior Consent 

Consent must include the following information:

• The types of documents to which the consent would apply;
• That the consent can be withdrawn at any time without charge;
• The procedures for withdrawing consent and for updating the participant’s, beneficiary’s or other individual’s address for receipt of electronically furnished documents or other information;
• The right to request and obtain a paper version of an electronically furnished document, including whether the paper version will be provided free of charge; and
• Any hardware and software requirements for accessing and retaining the documents.

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:

• Have the ability to print out a paper copy at the place where they have computer access
• Consent to receive documents electronically

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.

FAQs

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