The DOL safe harbor describes certain circumstances where ERISA plans may disclose documents electronically, including the Summary Plan Description (SPD). Under this safe harbor, plan administrators must use a method reasonably calculated to ensure actual receipt of the SPD. For example, the administrator could use a read-receipt, notice of undelivered e-mail, or run periodic reviews to confirm receipt of any transmitted information.
The rules identify two categories of employees when determining whether electronic distribution is appropriate:
Participants with work-related computer access as an integral part of their employment duties, and
Participants with no work-related computer access, but who affirmatively consent to receive documents electronically.
Note that the first group would not necessarily include employees who have access to a computer station or who've been given a company-issued email. Instead, these employees must be able to access electronic documents at a location where they usually work. Therefore the employer needs to look at the nature of their employees’ duties and determine which category they fit into.
If employees fit into the second category, these workers must provide consent to their employer to send the documents electronically via personal email. However, the employer must provide a notice prior to, or as a part of that request for consent that includes the following:
an explanation that the documents will be available electronically
a notice that the employee's consent for electronic documents can be withdrawn without charge
the procedures for withdrawing consent and updating information
the right to request a paper copy and if a charge applies (note: no charge may be imposed for an SPD because it must be provided without charge)
description of the electronic delivery system and the software needed to use it
If an employee in the second category doesn't give consent, or withdraws consent, then the employer should mail a paper copy or distribute it through some other verifiable delivery method.
Regardless of what category your employees fall under, the recipient must be told of the significance of the document and of the right to request and obtain a paper version. In other words, the employer needs to tell them what it is and how to ask for a paper copy. They should not, under any circumstance, just post the SPD to a company website without taking measures to ensure actual receipt.
As usual, DOL rules can be tricky when it comes to employer sponsored health plans. Don't hesitate to reach out: BCS is here to help!