DOL applies its electronic delivery safe harbor to all sorts of welfare benefits notices and documents—from the SPD to the COBRA initial rights notice. Here's how it works. 

General Rule

The DOL electronic delivery safe harbor rule splits recipients into two categories: those whose integral job duties include work-related computer access (a/k/a "wired at work") and those whose integral job duties do not include work-related computer access. For employees with work-related computer access as an integral part of their job duties, an employer may distribute documents and notices electronically without obtaining employee consent. For individuals whose integral job duties do not include work-related computer access, an employer must obtain affirmative consent meeting DOL's standards. Without consent from employees not wired at work, the employer must provide paper copies of documents and notices.

1. Employees Whose Integral Job Duties Include Work-Related Computer Access

An employer may distribute documents and notices electronically without obtaining employee consent if the employer complies with the following requirements: 

  • The employee can access documents at any location where he/she is reasonably expected to perform employment duties.
  • The employee's access to the employer's electronic information system is an integral part of his/her employment duties.
  • The employer/plan administrator uses appropriate and necessary means to ensure that the electronic distribution method results in actual receipt of the information.
  • The electronically-delivered documents meet all requirements that are otherwise applicable (such as requirements on content, format and timing).
  • The employer notifies each recipient, at the time the information is distributed electronically, of the availability and significance of the document and of the recipient’s right to request a paper version of the document, and whether an additional charge will apply. (Some welfare benefit notice regulations allow the employer to charge for paper copes, but most prohibit it.)

2. Employees Whose Integral Job Duties Do Not Include Work-Related Computer Access

An employer may distribute documents and notices electronically to employees whose integral job duties do not include work-related computer access only if the employer complies with the following requirements:

  • The employee affirmatively consents to electronic disclosure before the disclosure is made.
  • The employee consents in a manner that reasonably demonstrates the individual’s ability to access information in the electronic format that will be used, such as by requiring that the employee click on an email link to confirm the employee's consent to electronic notices.
  • The employee provides an email address at which he/she can receive notices or the employee is provided instructions on how to access notices electronically.
  • The employee is provided a statement before electronic delivery of notices begins that describes: the types of documents the employer/plan administrator will provide electronically; that the individual can subsequently withdraw consent at any time; the procedures for withdrawing consent and updating information (for example, changing the email address at which electronic disclosure will be received); that the individual has the right to request a paper version at no charge; and the particular electronic delivery system the employer will use and what hardware and software will be needed to use it.
  • The employer/plan administrator uses appropriate and necessary means to ensure that the electronic distribution method results in actual receipt of the information.
  • The electronically-delivered documents meet all requirements that are otherwise applicable (such as requirements on content, format and timing).
  • The employer notifies each recipient, at the time the information is distributed electronically, of the availability and significance of the document and of the recipient’s right to request a paper version of the document, and whether an additional charge will apply. (Some welfare benefit notice regulations allow the employer to charge for paper copes, but most prohibit it.)

For employees whose integral job duties do not include work-related computer access and who do not affirmatively consent to electronic disclosure as outlined above, the employer/plan administrator must provide paper copies of the documents or notices and generally cannot charge an additional amount to do so. 

Practically Speaking...

We've worked with numerous employers on notice compliance issues, and generally speaking the most practical, compliant approach is to implement some sort of electronic employee portal with email alerts to employees when something is posted and an opt-in process for employees not wired at work.

Electronic Notice and Form Dumping Ground

This doesn't need to be complicated. All you need is a basic method of sharing files that serves as a dumping ground for HR-related notices and forms. The portal could be a company intranet or Sharepoint site, a module of an HRIS system or just a simple Wordpress website.

Email Alerts

DOL and IRS are both very clear that employers cannot simply dump notices someplace and do nothing more. Employees must be provided instructions on how to access it, including any URLs or links needed and any computer or system requirements such as having internet access.

To make this web dumping ground work, employers must also notify employees each time a notice or form (or update to a notice or form) is posted. Most employers just send employees an email with a link to the page where the notice or form is posted or include a note in a payroll check remittance notice.

Opt-In Process

As stated above, certain types of employees cannot be automatically opted in to receiving electronic notices. Employees who are not wired at work according to the DOL's standard must affirmatively opt in, and they must do so in a manner that demonstrates they can access the electronic information. The net result is that employees not wired at work must give consent electronically. The most convenient time to do this is in connection with an electronic open enrollment process or electronic new hire process.

Tempting though it may be, employers are cautioned against holding benefits enrollment over employees heads to obtain consent. It's not a good idea to effectively require consent to electronic notices by requiring that all benefits enrollment be done electronically. DOL could interpret that as conditioning benefits enrollment on consent to electronic notices, which is prohibited. With careful drafting of your consent language and intentional implementation of the consent process, though, it's fairly easy to design an opt-in process that results in all but the most stubborn and Heideggerian of employees consenting to electronic delivery. 

Happy to Help

We've done this many times, so if you'd like assistance complying with DOL's or IRS's electronic delivery requirements, just drop us a note or ping us on the in-app messenger.

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