Participant Plan Document Request

[Guest Gumby]

I've had a couple of participants request the plan documents for our 401(k) Plan and our Severance Plan. In both cases, although there is nothing to hide, I'd rather not begin sending over voluminous plans with multiple amendments and simply send the person a copy of the respective SPD again.

Nothing in the DOL regs seem to contemplate the actual plan document being required to be provided. Perhaps I'm reading between the lines too much, but it seems that the DOL sees the SPD as serving the same purpose as the plan document itself.

So, the question is whether I do have to provide the plan document or can I just keep sending out SPDs?

[Kevin C]

Yes, you have to provide a copy of the entire document if they request it. A reasonable copying charge can apply. Penalties can apply if the documents are not provided timely.

Look at the ERISA rights section of your SPD. It should say that they are entitled to request a copy of the plan document. If that isn't enough to persuade you, look at ERISA section 104(b)(4) and DOL Opinion Letter 96-14A.

[Guest Sieve]

ERISA does, in fact, contemplate providing participants, upon request, a copy of the plan document: "The administrator shall, upon written request of any participant . . . furnish a copy of . . . other instruments under which the plan is established or operated." (ERISA Section 104(b)(4), emphasis added.) The required disclosure of documents can be performed through various methods (DOL Reg. Section 2520.104b-1(b) & ©). A charge can be made for providing copies (DOL Reg. Section 2520.104b-30). And a court can award penalties for not timely providing such documents (ERISA Section 502©(1)(B)).

(Kevin C. posted while I was composing my post.)

[J Simmons]

I seem to recollect that you only have to honor a document request that is made in writing and sent to the plan administrator. Since you have only 30 days before daily penalties can kick in for not providing documents, it would seem however better just to provide them promptly when asked.

[Guest Sieve]

I would agree with JSimmons that it is a good idea to provide documents when a verbal request is made, even though the requirement to provide a copy of a specifically requested document does not arise until 30 days after the request is memorialized in writing. Waiting until a written request is received will be cause for alarm for those who want to believe that any employer delay must be because there is something to hide, and it can energize skepticism and mistrust among employees.

Besides, those same documents are required to be made "available for inspection" at the administrator's (i.e., generally the employer's) principal place of business within just 10 days of a request to inspect (ERISA Section 104(b)(2) and DOL Reg. Section 104b-1(b)(3)). Some employers find it easier to keep a binder of documents available at each location (such as in the HR director's office) precisely to facilitate just such an inspection by a participant without the need to gather all appropriate documents. The employer usually will place some sort of control on the binders so that, for example, non-union employees aren't able to inspect the union plan and union contracts.

But don't let employees go on a fishing expedition. There are some documents (such as those which include identifiable compensation numbers and actuarial work papers) that are not required to be made available to partcipants or beneficiaries.

[Guest Gumby]

Thanks, all. I guess I thought we could avoid having to send a plan document plus 12 amendments. But a rule is a rule.

[J Simmons]

* * * Besides, those same documents are required to be made "available for inspection" at the administrator's (i.e., generally the employer's) principal place of business within just 10 days of a request to inspect (ERISA Section 104(b)(2) and DOL Reg. Section 104b-1(b)(3)). * * *

Larry, do you know if the inspection request (as distinguished from a document copy request) must be made in writing? Just curious--as it would be wise, I think, to allow the inspection within 10 days of an oral request just as it is to provide the documents within 30 days of an oral request, though technically required to be made in writing.

[Guest Sieve]

I don't know the answer, but, based on the language of the regs, would suspect that a writing is not required to inspect the documents.

In fact, on closer inspection of those regs, the 10-day requirement only applies to providing documents for inspection at other employer locations or union halls, and does not apply to the general requirement to make the documents available for inspection. ERISA Reg. Section 1.104b-2(b)(3) requires that "[p]lan administrators shall make copies . . . available at all times in their principal offices" (emphasis added), and "copies must be available in sufficient numbers to accomodate the expected volume of inquiries".

Frankly, I had forgotten about this inspection provision (if I ever knew it existed) until I found it while looking for citations for an answer to the OP.