As with the proposed regulations, the final regulations:

Although some commenters urged the DOL to expand the rule to include health and welfare plans, the DOL declined to do so, citing the unique issues that health and welfare plan disclosures raise. In the group health plan context, for example, this includes issues involving pre-service claims and access to emergency care. Also, as a jurisdictional matter, DOL would have needed to coordinate with the Departments of Health and Human Services (HHS) and Treasury regarding changes to the electronic disclosure rules for group health plan disclosures.

The DOL indicated that it will continue exploring the future application of the safe harbor to health and welfare plans.

The DOL's safe harbor creates a "notice and access" structure similar to what the DOL adopted in FAB 2006-03 for pension benefit statements and what the SEC adopted for certain investor relations. Under the notice and access structure, plans that use the safe harbor must provide to each covered individual a notice of internet availability for each covered document. The covered documents will be posted on a website that covered individuals can access.

In a change from the proposed regulations, the final regulations permit plan administrators to furnish covered documents directly to covered individuals via email attachment. The body of the email must meet certain content requirements. Plan administrators that provide direct email delivery of covered documents are not required to also provide a notice of internet availability for the documents.

Under the final regulations, a covered individual is defined as a:

The covered individual must provide the employer, plan sponsor, or administrator with an electronic address, including an email address or a smartphone number. When a covered individual who is an employee ends employment with the employer, the plan administrator must take steps to ensure the continued accuracy of the electronic address. In a change from the proposed regulations, however, the final regulations only impose this requirement with respect to individuals with employer-provided electronic addresses. The DOL agreed with commenters that the concerns about continued validity and access to electronic addresses upon severance from employment did not apply to individuals' personal electronic addresses.

The final regulations also adopt the proposed covered document definition, with a few revisions. A covered document:

To learn more about the notices that must be provided by retirement plans, see the Qualified Retirement Plan Notices Toolkit.

The final regulations provide content requirements for the notice of internet availability that must be provided to each covered individual for each covered document.

Generally, the notice of internet availability must be provided at the time the covered document is made available on a website. However, the timing requirements are deemed satisfied if a plan administrator provides a combined notice of internet availability for more than one covered document each plan year.

The final regulations adopt the proposed regulations' content requirements for the notice of internet availability with a few modifications. As finalized, the notice of internet availability must include:

Under the final regulations, the notice of internet availability may also specify whether the covered individual is "invited or required" to respond to the covered document. This information is not required to be included in the notice.

Regarding the form and manner of providing the notice, the final regulations adopt the proposed requirement that the notice of internet availability be written in a manner calculated to be understood by the average plan participant. In response to concerns that the proposed measurements for assessing readability of the notice (for example, avoiding double negatives and achieving a Flesch Reading Ease test score of 60 or more) could be viewed as mandatory standards, rather than examples of how to comply, the final regulations omit the specific measurements.

Citing the lack of interest from commenters, the DOL declined to include a model notice of internet availability in the final regulations.

The final regulations also adopt the proposed provision allowing plan administrators to provide one combined notice of internet availability that covers several documents, but replace the list of seven covered documents for which plan administrators may provide a combined notice with the following four groups of documents:

Notably, the final regulations do not permit an annual NOIA to cover quarterly benefit statements under ERISA Section 105(a)(1)(A)(i) (29 U.S.C. § 1025(a)(1)(A)(i)). Instead, a separate NOIA must be provided for each quarterly benefit statement.

Before a retirement plan administrator may rely on the safe harbor, it must provide an initial notification of default electronic delivery of each required disclosure. Like the proposed regulations, the final regulations require the initial notice to be provided on paper to covered individuals and to state:

In addition, the final regulations add the following content requirements for the initial notice:

The final regulations adopt with modifications the proposed standards for the website on which the covered documents will be available. Specifically, the final regulations revise the proposed standards to:

The finalized safe harbor preserves the right of covered individuals to receive, on request, paper copies of covered documents free of charge. It also allows covered individuals to opt out of electronic delivery and receive only paper versions of covered documents. In a change from the proposed regulations, the final regulations only require plan administrators to allow covered individuals to opt out of electronic delivery for all covered documents. Plan administrators may, but are not required to, allow covered individuals to opt out of electronic delivery on a document-by-document basis. Plan administrators must have "reasonable procedures" governing these requests and elections.

Under the final regulations, the safe harbor is deemed satisfied even if the covered documents are temporarily unavailable due to unanticipated events or technical maintenance, provided that the plan administrator has certain procedures in place and takes certain actions, as specified.

The final regulations are effective July 27, 2020, which is 60 days after publication in the Federal Register. In a change from the proposed regulations, the safe harbor's applicability date is also 60 days after publication (July 27, 2020), rather than the first day of the first calendar year following the date of publication of the final regulations. According to the DOL, this change was warranted given the COVID-19 outbreak in the US and the related disclosure issues retirement plans are facing. Furthermore, the DOL will not take enforcement action against plan administrators that rely on the safe harbor before its effective and applicability dates.

The final regulations supersede the DOL's prior guidance regarding electronic disclosures in FAB 2006-03, FAB 2008-03, and Technical Release 2011-03R. In response to commenters' concerns about disruptions to plan administrators' existing systems, however, the regulations provide for an 18-month transition period during which plan administrators may continue relying on the prior guidance. The DOL also indicated that it will not take enforcement action against plan administrators who comply with the prior guidance during the transition period.

In response to requests from commenters, the DOL also included a transition policy regarding the continued use of electronic addresses obtained by plan administrators before the final regulations' effective date. Under this transition policy, plan administrators may continue using electronic addresses already in their possession without verifying that the addresses were provided by the covered individual, provided the plan administrators act reasonably and in good faith and comply with certain other requirements.