Electronic Delivery Consent
(ERISA 2002 Safe Harbor)

Summary

Benefit plan administrators may use this template to obtain consent from participants and beneficiaries lacking adequate access to the employer's electronic information system to receive plan disclosures in electronic form pursuant to the Employee Retirement Income Security Act (ERISA) 2002 Safe Harbor. This template includes practical guidance and drafting notes. The Department of Labor's (DOL's) 2002 Safe Harbor allows plan administrators to fulfill their disclosure obligation for any document required to be provided under Title I of ERISA, such as a summary plan disclosure (SPD), by sending it in electronic form or to otherwise notify the recipient (by electronic or non-electronic means) how they may access the disclosure via an electronic medium (e.g., by accessing an internet website or the employer's electronic information system). See 29 C.F.R. § 2520.104b-1(c). These rules are largely consistent with similar rules for electronic delivery of qualified plan communications required under the Internal Revenue Code, such as contribution, investment, and distribution election communications; automatic enrollment notices; safe harbor 401(k) plan notices; and eligible rollover distribution notices. See Treas. Reg. § 1.401(a)-21. The 2002 safe harbor may only be used for recipients who either: • Are plan participants having effective access as an integral part of their work duties to their employer's electronic information system, which may be used to access the disclosure, in locations they are reasonably expected to work –or– • Have affirmatively consented to receive plan disclosures via electronic delivery in accordance with the safe harbor rules This template is designed to obtain consent from individuals in the second category, which would include participants who are no longer employed by the plan sponsor or who do not meet the access requirements as well as beneficiaries entitled to receive separate notices under the plan and alternate payees under a qualified domestic relations order. This consent form may be delivered in electronic or non-electronic form. The procedural requirements for obtaining consent include: • Prior to obtaining consent, which may be in electronic or non-electronic form, the recipient is provided a clear and conspicuous consent disclosure statement, in electronic or non-electronic form, containing specified disclosures. • Recipients must provide electronic address to be used if required for electronic delivery. • If disclosures will be furnished via website or electronic system, the recipient must consent or affirm consent using the relevant electronic medium to demonstrate accessibility. • If the relevant hardware or software for accessing or retaining disclosures changes, consent reaffirmation is required after disclosure of the changes. 29 C.F.R. § 2520.104b-1(c)(2)(ii). In addition, the plan administrator's systems and procedures must: • Ensure that disclosures delivered electronically satisfy the style, format, and content requirements applicable to the particular document • Have a method for detecting effectiveness of delivery (may be automatic or via periodic review or surveys confirming receipt generally) • Protect the confidentiality of personal information relating to individual's accounts and benefits • Enable applicable recipients to withdraw their consent to electronic delivery and promptly begin to receive disclosures in paper form • Enable any recipient to receive a paper copy of any disclosure upon request 29 C.F.R. § 2520.104b-1(c)(1). In 2020, the DOL adopted an alternative safe harbor for furnishing documents electronically that applies solely to retirement plans. See 29 C.F.R. §§ 2520.104b-1(f), 2520.104b-31. Under those rules, plan administrators do not have to obtain consent from any recipients, but must, among other things, furnish an initial notice alerting recipients that certain documents will be provided electronically by default and explaining procedures for opting out of electronic delivery. For additional information about both safe harbor rules, see Electronic Disclosure Rules (ERISA Safe Harbors). For a template disclosure notice for the 2002 Safe Harbor, see Electronic Delivery Notice for Benefit Plan Disclosure (ERISA 2002 Safe Harbor). For templates associated with the 2020 Safe Harbor, see Electronic Delivery Initial Notice for Retirement Plan Disclosures (ERISA 2020 Safe Harbor) and Electronic Delivery Notice for Retirement Plan Disclosure (ERISA 2020 Safe Harbor). See also Electronic Disclosure Rules for Benefit Plans Comparison Chart. For a full listing of key content covering retirement plan notification requirements, see ERISA Retirement Plan Notices Resource Kit.