e-disclosure for H&W plans

[TPApril]

The recently e-disclosure rules do not seem to apply to Health & Welfare plans.  So providing SPD's, SAR's rely on the old method?

[Peter Gulia]

Last May’s 29 C.F.R. § 2520.104b-31 (Alternative method for disclosure through electronic media—Notice-and-access) is available only for retirement plans.

The Labor department reserved on health and other welfare-benefit plans.

See paragraph (c). https://ecfr.federalregister.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-C/part-2520/section-2520.104b-31

A welfare plan may deliver electronic disclosures as provided under a participant’s or beneficiary’s affirmative consent.

29 C.F.R. § 2520.104b-1 https://ecfr.federalregister.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-C/part-2520/section-2520.104b-1

 

[Brian Gilmore]

Some more details on the "old method" that still applies for H&W plans: The standard ERISA disclosure rules provide that ERISA-required documents must be provided to participants in a manner that’s “reasonably calculated to ensure actual receipt” by the intended recipient.

The DOL has a safe harbor under which plans will be deemed to meet this standard.  This method is sometimes misunderstood as a requirement—it is not.  It is merely the only guaranteed way to satisfy ERISA’s disclosure requirements by electronic media.  The safe harbor generally requires either (a) the employee has work-related computer access that is integral to his or her job duties (i.e., employee works at a desk with a computer), or (b) the employee’s electronic affirmative consent to electronic disclosure.

So if all of the company’s employees have work-related computer access that is integral to their job duties, it is clear that no authorization is required to distribute ERISA documents electronically.  If there are employees who don’t meet this standard, the safer approach is to meet the DOL’s safe harbor by receiving their affirmative consent to electronic disclosure of ERISA documents.

Here's a highlight from the "old method" electronic safe harbor still in effect for H&W:

29 CFR §2520.104b-1(c):

(c) Disclosure through electronic media.

(1)   Except as otherwise provided by applicable law, rule or regulation, the administrator of an employee benefit plan furnishing documents through electronic media is deemed to satisfy the requirements of paragraph (b)(1) of this section with respect to an individual described in paragraph (c)(2) if:

...

(2)   Paragraph (c)(1) shall only apply with respect to the following individuals:

(i)   A participant who—

(A)   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

(B)   With respect to whom access to the employer’s or plan sponsor’s electronic information system is an integral part of those duties; or

...