Electronic Delivery of 401(k) and other ERISA Disclosures

By: Angel Berberena, Esq.

May 28, 2020

On May 27, 2020, the U.S. Department of Labor (US-DOL) published its final rule allowing retirement plan administrators who wish to use electronic media, as a default, to furnish covered documents to covered individuals subject to the Employee Retirement Income Security Act of 1974 (ERISA).

This change is expected to result in substantial economic savings and logistical benefits related to ERISA’s disclosure requirements for plan administrators and employers. This rule is effective as of July 26, 2020 but the US-DOL has announced that no enforcement will be taken against a plan administrator that relies on the final rules before that date.

Plan administrators now have two methods to perform electronic disclosures:

• Website Posting. Provided appropriate notification of internet availability is furnished to the electronic address of covered individuals.
• E-mail Delivery. Provided the covered document is in the body of the e-mail or as an attachment to the email of covered individuals.

Before covered documents are provided under either method, covered individuals must be furnished an initial notification, on paper, that the way they currently receive retirement plan disclosures will be changing. The notice must inform them of the new electronic delivery method, the electronic address that will be used, and the right to opt out if they prefer paper disclosures, among other things.

Additional protections and requirements include:

• Right to Paper. Covered individuals can request paper copies of specific documents, or globally opt out of electronic delivery entirely, at any time, free of charge.
• Notifications of Internet Availability. Covered individuals generally must be furnished a notice of internet availability (NOIA) each time a new covered document is made available for review on the internet website.
• Website Retention. Covered documents must remain on an internet website until superseded by a subsequent version, but in no event for less than one year.
• System Check for Invalid Electronic Addresses. Plan administrators must ensure that the electronic delivery system is designed to alert them if a participant’s electronic address is invalid or inoperable. In that case, the administrator must attempt to promptly cure the problem, or treat the participant as opting out of electronic delivery.
• System Check at Termination of Employment. When someone leaves their employment, the plan administrator must take steps to ensure the continued accuracy and operability of the person’s employer-provided electronic address.

Goldman Antonetti & Cordóva, LLC stands ready to assist you and your business to adjust to Puerto Rico’s regulatory and legal changes. If you need further assistance in this area, please contact any of the following members of our Firm (note that during this emergency, it will be easier for you to communicate with us through electronic mail, as provided below) :

Disclaimer:

Although the information included in this document may concern legal issues, it is not a legal opinion or professional advice and clients shall not use it as such. We assume no responsibility or liability of any kind for any information contained herein, and we expressly disclaim all liability for any claim for damages arising from the use, reference to, or reliance on, such information. If legal or other expert assistance is required, the services of a competent professional should be sought.

Goldman Antonetti & Cordóva, LLC | 787-759-8000 | www.gaclaw.com