This case contained an excellent summary on the rules surrounding an employer's use of electronic means to deliver plan documents, such as SPDs. That discussion is provided for you in part, below. This is from pages 26 to 31 in Thomas v. CIGNA, et al, Eastern District of New York, March 2, 2015:
Section 104(b)(1) of ERISA, 29 U.S.C. § 1024(b)(1), requires the administrator of an employee benefit plan to "furnish" each participant with a copy of the summary plan description ("SPD") at specified times and intervals.... [S]ection 104(b)(1) ... require[s] a plan administrator to furnish the SPD to each participant "within 90 days after he becomes a participant" or within 120 days after the plan becomes subject to ERISA. 29 U.S.C. § 1024(b)(1). In addition, "[i]f there is a modification to the plan or change of the sort described in [29 U.S.C. § 1022(a)] ... a summary description of such modification or change must be furnished not later than 210 days after the end of the plan year in which the change is adopted." 29 U.S.C. § 1024(b)(1)....
[S]tatutes require that the SPD be "furnished," not simply made available. ERISA requires the administrator of an employee benefit plan covered by Title I of the Act to make certain disclosures to participants, beneficiaries and other specified individuals....
The DOL has issued detailed rules and regulations regarding how to satisfy section 104(b)(1)(A) of ERISA.... [T]he DOL has taken the position that materials can be furnished through "measures reasonably calculated to ensure actual receipt of the material by plan participants, beneficiaries and other specified individuals." 29 C.F.R. § 2520.104b-l(b)(1). Moreover, materials which are "required to be furnished to all participants covered under the plan and beneficiaries receiving benefits under the plan ... must be sent by a method or methods of delivery likely to result in full distribution." Id. The regulations specifically endorse certain methods of delivery, such as "in-hand delivery to an employee at his or her worksite" or publication of the material "as a special insert in a periodical distributed to employees ... if the distribution list for the periodical is comprehensive and up-to-date and a prominent notice on the front page of the periodical advises readers that the issue contains an insert with important information about rights under the plan and the Act which should be read and retained for future reference." Id. The regulations also expressly permit materials to be furnished by first-class mail, but provide that second- or third-class mail "is acceptable only if return and forwarding postage is guaranteed and address correction is requested." Id. However, the regulations caution that "in no case is it acceptable merely to place copies of the material in a location frequented by participants." Id.
Prior to 1997, the regulations did not contain any provisions relating to furnishing materials through electronic means. In 1996, however, section 101(c) of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") amended section 1 04(b)(1) of ERISA to provide that "[t]he Secretary [of Labor] shall issue regulations within 180 days after August 21, 1996, providing alternative mechanisms to delivery by mail through which group health plans (as so defined) may notify participants and beneficiaries of material reductions in covered services or benefits." ...
The "safe harbor" [for electric delivery of plan documents] was codified in 29 C.F.R. § 2520.104b-1(c), which provided:
(1) The administrator of a group health plan furnishing documents described in section 1 04(b)(1) of the Act through electronic media will be deemed to satisfy the requirements of paragraph (b)(1) of this section with respect to participants described in paragraph (c)(2) of this section if-
(i) The administrator takes appropriate and necessary measures to ensure that the system for furnishing documents results in actual receipt by participants of transmitted information and documents (e.g., uses return-receipt electronic mail feature or conducts periodic reviews or surveys to confirm receipt of transmitted information);
(ii) Electronically delivered documents are prepared and furnished in a manner consistent with the applicable style, format and content requirements (See 29 CFR 2520.102-2 through 2520.102-5);
(iii) Each participant is provided notice, through electronic means or in writing, apprising the participant of the document(s) to be furnished electronically, the significance of the document (e.g., the document describes changes in the benefits provided by your plan) and the participant's right to request and receive, free of charge, a paper copy of each such document; and
(iv) Upon request of any participant, the administrator furnishes, free of charge, a paper copy of any document delivered to the participant through electronic media.
29 C.F.R. § 2520.104b-1(c)(1).
Paragraph (c)(2) provided that the furnishing of documents through electronic media would be deemed to satisfy the requirements of paragraph (b)(1) only with respect to participants who had
(1) "the ability to effectively access at their worksite documents furnished in electronic form" and
(2) "the opportunity at their worksite location to readily convert furnished documents from electronic form to paper form free of charge." 29 C.F.R. § 2520.104b- I (c)(2)(i) and (ii).
In explaining why it limited electronic disclosure to these participants, the DOL stated its belief that "the critical determination in assessing the adequacy of the system, as a means for communicating to plan participants" was "the extent to which participants can readily access and retain the delivered information." Interim Rules Amending ERISA Disclosure Requirements for Group Health Plans, 62 Fed. Reg. at 16982. ...
