Article courtesy of SBAM Approved Partner Kushner & Co.
We’re often asked if an employer can post a plan’s Summary Plan Description (SPD) on its company’s intranet website. The answer is a qualified yes, as long as certain rules are followed. The Department of Labor (DOL) provides a safe harbor for electronic disclosure of plan documents including the use of an intranet. The safe harbor sets forth general requirements for all electronic disclosures and additional requirements for recipients that do not have computer access at work.
First, a written notice of the availability of the SPD and its significance must be provided to each recipient at the time the SPD is posted electronically. The notice must describe the right to request a paper copy of the SPD at no charge. Second, the plan administrator must ensure that posting the SPD on the company intranet results in actual receipt. Examples of appropriate steps might nclude placing a prominent link to the SPD on the intranet home page; maintaining the SPD on the website for a reasonable period of time; and using return-receipt or notice of undelivered email features or conducting periodic reviews to confirm receipt of notices regarding the SPD’s availability. For employees with the ability to effectively access documents at any location where the employee reasonably could be expected to perform work and whose computer access is an integral part of their employment duties, no additional requirements apply.
For those individuals who do not have intranet or any computer access at work (as well as non-employees such as COBRA beneficiaries), additional requirements apply in order to implement electronic distribution. These individuals must be furnished with an explanation of the types of documents to be provided electronically, how to update the individual’s electronic delivery address, procedures for withdrawing consent. After receiving the explanation the individual must affirmatively consent to electronic disclosure “in a manner that reasonably demonstrates the individual’s ability to access information in the electronic form that will be used.” Also, significant changes in hardware or software requirements require a new explanation and consent.
Because these conditions are a safe harbor, compliance is not mandatory. But compliance will help ensure that the DOL will find your plan’s electronic delivery method is “reasonably calculated to ensure actual receipt,” and increases the chances that a court will find the delivery method sufficient. Providing the notice of the SPD’s availability and significance is crucial, as posting the SPD on a company intranet without notifying recipients does not satisfy the safe harbor and likely would be found insufficient by a court.
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