The U.S. Department of Labor (DOL) is soliciting public comments on expanding or modifying current rules regarding the electronic distribution of employee benefit plan information. Plan information, such as quarterly account statements, is required to be disclosed under the Employee Retirement Income Security Act (ERISA), which is enforced by the DOL's Employee Benefits Security Administration.
The request for information was published in the Federal Register on April 7, 2011. Comments will be accepted through June 6, 2011.
“Some workers and retirees may not be sufficiently computer literate to receive information electronically or have reasonable access to the Internet, and others may simply prefer traditional paper disclosure,” Assistant Secretary of Labor for EBSA Phyllis C. Borzi said in a released statement. “But in some instances, electronic disclosure may be just as effective as paper-based communications and could save employers and service providers money. We look forward to reviewing all the comments we receive on these and the other issues raised in the request for information.”
A Modified Safe Harbor?
The DOL request sets forth 30 specific questions on a broad range of topics related to electronic distribution of benefit plan information. Several of the questions pertain to the DOL's electronic disclosure safe harbor, which is currently available only if three conditions are met:
1. The plan administrator takes appropriate and necessary measures reasonably calculated to ensure that the system for furnishing documents results in actual receipt of transmitted information and protects the confidentiality of personal information relating to the individual’s accounts and benefits.
2. The electronically delivered documents are prepared and furnished in a manner that is consistent with the style, format and content requirements applicable to the particular document.
3. Notice is provided to each participant, beneficiary or other individual, in electronic or nonelectronic form, at the time a document is furnished electronically, that apprises the individual of the significance of the document when it is not otherwise reasonably evident as transmitted and of the right to request and obtain a paper version of the document.
Among the questions for which the DOL is seeking public comment:
• Should a revised safe harbor have different rules or conditions for different types of employee benefit plans (e.g., pension vs. welfare plans)?
• Should a revised safe harbor have different rules or conditions for different types of disclosures (e.g., annual funding notice, quarterly benefit statement, COBRA election notice, etc.)?
• Should a revised safe harbor have different rules or conditions for different recipients entitled to disclosures (e.g., active employees, retirees, COBRA qualified beneficiaries, etc.)?
The DOL hopes to hear from employers and other plan sponsors; plan participants and beneficiaries; plan administrators; plan service providers; health insurance issuers; members of the financial community; and the general public. In addition to responding to specific questions contained in the request for information, interested parties are encouraged to address any other relevant matters.
Comments can be submitted by e-mail to E-ORI@dol.gov or through the federal e-rulemaking portal at http://www.regulations.gov. The subject line should indicate "Attn: Electronic Disclosure by Employee Benefit Plans RFI."
What employee benefit plan disclosures must employers provide to employees and when?, SHRM HR Q&As, November 2009
SHRM Online Benefits Discipline