The Department of Labor (the “Department”) issued a proposed rule, in which it proposed narrow amendments to its electronic disclosure safe harbors to implement the statutory directive in Section 338 of SECURE 2.0.[1] The proposed rule, “Requirement to Provide Paper Statements in Certain Cases – Amendments to Electronic Disclosure Safe Harbors,” was published in the Federal Register on February 25, 2026. The Department noted that the proposed rule better aligns the safe harbors with (1) participant preferences, especially elderly, low-to-moderate income, and non-wired-at-work individuals, and (2) each other, in that the proposed changes will reduce differences between each safe harbor’s requirements, particularly with respect to rights to opt-out of e-delivery.
Section 338 of SECURE 2.0 amended ERISA’s pension benefit statement rules to require retirement plans to provide paper benefit statements in some instances and directed the Department to update two electronic disclosure safe harbors, 29 C.F.R. § 2520.104b-1(c) (the “2002 Safe Harbor”) and 29 C.F.R. § 2520.104b-31 (the “2020 Safe Harbor”). While the proposed rule closely tracks the statutory directive, plan sponsors, recordkeepers, and third-party administrators may want to evaluate their electronic disclosure procedures and submit comments to the Department during the 60-day comment period.
Background on the Safe Harbors and ERISA Section 105(a)(2)(E)
ERISA requires plan administrators to provide all required participant-level disclosures using “measures reasonably calculated to ensure actual receipt” of required disclosures. One ERISA-required disclosure is a “pension benefit statement” that must be provided at certain required intervals depending on the plan type. DOL has issued two separate safe harbor regulations that describe the circumstances under which electronic delivery may be used to deliver participant-level disclosures, the 2002 Safe Harbor and the 2020 Safe Harbor. Notably, both regulations are “safe harbors,” meaning that DOL acknowledges that other e-delivery methods could meet ERISA’s requirement to deliver documents via a method reasonably designed to ensure actual receipt.
The 2002 Safe Harbor
The 2002 Safe Harbor allows participant disclosures to be provided electronically for “wired-at-work” participants (i.e., current employees for whom access to the employer’s electronic information system is an integral part of their job duties) and individuals who have given, and have not withdrawn, affirmative consent to receiving electronic disclosures. Importantly, the 2002 Safe Harbor currently does not require wired at work participants to be given a right to globally opt out of e-delivery.
The 2020 Safe Harbor
The 2020 Safe Harbor permits electronic disclosure of covered documents when an individual provides the plan sponsor with a valid electronic address (regardless of whether the individual is wired-at-work or gives affirmative consent). Current employees that are assigned a work-related electronic address by an employer are covered by the safe harbor. In reliance on the 2020 Safe Harbor, plan sponsors may provide electronic disclosures by one of two methods: (1) notifying recipients that information is available on a hyperlinked, continuously accessible website or (2) emailing recipients the required disclosure. That said, before using either method, plans must provide an initial paper notice that includes, among others, a disclosure to individuals that they will begin receiving electronic disclosures and may opt out without cost. The 2020 Safe Harbor contains additional detailed requirements governing rights to opt out of e-delivery and procedures for following up on notices of failed delivery and severance from employment.
ERISA Section 105(a)(2)(E)
Section 338 of SECURE 2.0 amended ERISA by adding a new requirement, located at ERISA section 105(a)(2)(E), that (1) defined contribution plans must furnish at least one paper pension benefit statement in any calendar year and (2) defined benefit plans must, furnish at least one paper pension benefit statement every three calendar years (excluding one-participant retirement plans). That said, plans may avoid the ERISA section 105(a)(2)(E) paper pension benefit statement requirement if (1) the plan relies on the 2002 Safe Harbor and provides electronic disclosures or (2) the individual requests electronic pension benefit statements (and such statements are electronically delivered). Section 338 of SECURE 2.0 also directed the Department to revise its electronic disclosure safe harbors accordingly.
Proposed Changes to the 2002 Safe Harbor
The Department proposed revising the 2002 Safe Harbor to require pension plans that elect to furnish electronic pension benefit statements described in ERISA section 105(a)(2) to furnish, on paper, a one-time, initial notice to individuals who first become eligible plan participants or beneficiaries on or after January 1, 2026, before furnishing any electronic pension benefit statements. The Department proposed that this initial notice must notify individuals of their right to opt out of e-delivery and request all ERISA Title I required documents to be furnished on paper. The Department also proposed that plans that furnish the already-required advance statement in connection with obtaining consent to e-delivery (describing that the individual may withdraw their consent to receive electronic disclosures and explaining how to do so) on paper may use such advance statement to satisfy the initial notice requirement.
Plan Sponsor Impact if Proposal is Finalized: In our experience, most plans rely on the 2002 Safe Harbor rather than the 2020 Safe Harbor. Plans that rely on the 2002 Safe Harbor for electronic disclosures will need to provide individuals who first become eligible plan participants or beneficiaries on or after January 1, 2026 with a one-time notice that they will receive electronic disclosures and how to opt out and request paper disclosures. In addition, these plans must permit these new participants on or after January 1, 2026 to globally opt out of e-delivery even if they meet the wired at work standard. This is significant because the 2002 Safe Harbor does not require wired at work employees to have a right to opt out of e-delivery. Plans that do not rely on the 2002 Safe Harbor to provide electronic pension benefit statements (i.e., plans that provide paper pension benefit statements) need not provide the initial notices.
Proposed Changes to the 2020 Safe Harbor
The Department proposed revising the 2020 Safe Harbor to exclude pension benefit statements described in ERISA section 105(a)(2)(E) from documents that may be electronically furnished (i.e., requiring them to be provided on paper). The Department proposed that plans may not charge any fees for the delivery of paper pension benefit statements described in ERISA section 105(a)(2)(E). In addition, the Department proposed that ERISA section 105(a)(2)(E) paper pension benefit statements must (1) describe how to request that such statements are furnished electronically and (2) include contact information, including a telephone number, for the plan sponsor, plan administrator, or other designated plan representative.
For plans electronically disclosing covered documents under the 2020 Safe Harbor, however, the Department proposed that individuals may affirmatively opt into receiving electronic pension benefit statements.
Plan Sponsor Impact if Proposal is Finalized: Plans that rely on the 2020 Safe Harbor for electronic disclosures will need to provide paper pension benefit statements, generally at least once every three years if a defined benefit plan and at least once per year if a defined contribution plan, unless the individual affirmatively opts into receiving electronic statements. Plans must explain electronic opt-in rights and include certain contact information on pension benefit statements provided on paper. Plans may not charge for any ERISA section 105(a)(2)(E) paper pension benefit statements.
No Enforcement Action for Good Faith Compliance
The new paper pension benefit statement requirements apply to plan years beginning on January 1, 2026. The Department stated, however, that until the Department issues a final rule or other applicable guidance, the Department “will not take enforcement action against plan administrators that comply in good faith with a reasonable interpretation of the provisions set forth in the proposal.” It remains to be seen how long this interim period of good faith compliance will last.
Comment Period
The Department requested comments on all aspects of the proposed rule, including, for example, assumptions made and used in the Department’s estimates of costs and benefits associated with this proposed rule, coordination between the new initial notice and existing advance statement, and required contact information. The comment period will end on April 27, 2026.
Takeaways
- The Department’s proposed rule closely tracks the statutory directives.
- The enforcement relief provides plan sponsors comfort while developing compliance strategies during the interim period.
- The proposed rule’s impact depends on reliance on the 2002 or 2020 Safe Harbors (or lack thereof). Plan sponsors and service providers may want to evaluate the proposed rule, their current disclosure practices and any reliance on the safe harbors, and whether making any changes in light of the proposed rule and/or submitting comments to the Department by the April 27, 2026 deadline may be appropriate.
- Given the good faith relief provision, plans that rely on the 2002 Safe Harbor and want to avoid providing paper benefit statements should consider developing the one-time paper notice for new participants and beneficiaries on or after January 1, 2026, as well as implement procedures for allowing these participants to globally opt out of e-delivery even if the participant meets the wired at work standard, as soon as possible.
[1] The Department’s proposed rule also included purely technical changes to its claims procedure regulation, 29 C.F.R. § 2560.503-1, in which it proposed updating the claims procedure regulation’s cross references to the 2002 Safe Harbor based on the proposed changes.
