Many employers are aware of their responsibility to have and distribute a summary plan description (SPD) for their health and welfare plan. An SPD can be a lengthy document. Some employers would like to distribute the SPD electronically or post the SPD on a company intranet site. However, electronic communication of an SPD satisfies a plan sponsor's distribution responsibilities only if the communication satisfies Department of Labor regulations.
The Department of Labor has specific rules governing when and how SPDs may be distributed electronically. These rules apply not only to SPDs, but to other notices required by the Department of Labor, such as Summary Annual Reports, Summary of Benefits and Coverage, and COBRA notices.
Under Department of Labor rules, an SPD may be distributed electronically to a plan participant only if (1) the individual has the ability to effectively access the information through a computer used at his or her regular worksite or (2) the individual affirmatively consents to the electronic distribution in accordance with certain guidelines.
An individual is considered to have effective access to a computer only if the individual uses the computer as an integral part of his or her regular work duties. Having a computer kiosk at a work station is not sufficient- the computer must be used as part of the individual's regular job.
If an employee does not have the ability to effectively access a computer at work as part of his or her job duties, an SPD may be delivered electronically only if the following requirements are met:
(1) The person affirmatively consents to receive the documents electronically. The employer cannot simply distribute a notice informing individuals that the document will be sent electronically- the individual must actually agree to receive the document.
(2) The individual's consent must be provided in a way that reasonably demonstrates the individual's ability to access the information in electronic form. The person must provide an email address, presumably sent to the employer electronically to show that the person actually has the ability to access the electronic communication.
(3) The individual must be given a clear and conspicuous statement describing the documents covered by the consent, the software and hardware requirements for electronic delivery and retention of the documents, and an explanation of the individual's right to revoke consent and to receive a paper copy of the document. The statement must be provided before the individual provides the consent described above, and it must describe the process for revoking consent and updating email address.
Additional rules must be followed for the electronic distribution of the document, for both individuals who have access to a computer at work and those who do not have access to a computer at work but provide consent to receive the document electronically.
- The electronic SPD must be provided in a manner that is consistent with the style, format and content requirements that apply to SPDs generally. To the extent practical, the electronic SPD should parallel the paper SPD.
- Each participant must be provided notice at the time that the SPD is provided that describes the significance of the SPD. This notice must also include a statement that the SPD can be requested in paper form.
- The employer must take measures to ensure that the SPD is actually received. Department of Labor regulations suggest using features that provide for (a) return receipt, (b) notice of undelivered mail, or (c) surveys to confirm receipt.
- The distribution must protect the confidentiality of any personal information.
- A paper version of the document must be provided upon request.
The Department of Labor's electronic distribution guidance was issued before Internet access and computer use was as widespread as it is today. The Department has indicated that it is considering updating its guidance, but for now, employers must comply with the electronic distribution rules before electronically distributing notices and other documents required by the Department of Labor.