When the Intranet or Email are Not Enough: Rules for Electronic Disclosure of Your Health and Welfare Plan Documents

This is from Keith McMurdy at Fox Rothschild, LLP: 

...[P]lan sponsors ask all the time if they can just e-mail plan documents to employees to satisfy the notice requirements, or maybe just post new plan documents on the company intranet.  Well, the recent decision in Thomas v. CIGNA (E.D.N.Y.) serves as a reminder that the short answer to that question is no. ...

There are actually rules that govern electronic disclosure of plan documents.  If employees have work-related computer access, ERISA disclosures may be delivered electronically, or posted on the intranet, if the employees have the ability to effectively access documents furnished in electronic form at any location where the employee is reasonably expected to perform his duties, and are expected to have access to the employer’s electronic information as an integral part of those duties.  It is not enough that they have access somewhere at work or have access at a common location (like a break room).  Accessing the computer has to be an actual requirement for their job function. 

Documents can still be sent to employees and beneficiaries without work-related access to a computer as long as additional requirements are met.  The employer or plan administrator must first obtain a consent form signed by the employee or beneficiary that specifically states the following: 

The names or types of documents to which the consent applies

• A sentence stating that consent can be withdrawn at any time without charge

• An e-mail address where the employee will be able to receive future announcements and/or documents if sent by e-mail

• The procedures for updating the e-mail address used for receipt of electronically furnished documents

• The procedures for withdrawing consent

• The right to request and obtain a printed version of an electronically furnished document and, if there is a charge for the printed document, how much it will cost.

• The computer hardware or software needed to access and download the electronically delivered documents.

• If the plan administrator changes the hardware or software requirements, it must provide a new notice and obtain a new consent.

Without this consent, electronically providing documents is not sufficient.  Hard copies have to be provided. ...

The whole post is worth a read here.