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Plans May Need to Adjust Procedures for DOL Proposed Update to Electronic Notification Rules

On February 25, 2026, the Department of Labor (DOL) proposed an update to its regulations governing the electronic disclosures to participants and beneficiaries under the Employee Retirement Income Security Act of 1974 (ERISA). The proposed update reflects the amendments to ERISA made by section 338 of the SECURE 2.0 Act. Specifically, section 338 requires that periodic pension benefit statements provided to participants and beneficiaries include at least one paper statement (unless an exception applies).

This alert describes the changes proposed by DOL, the impact on the pension benefit statement disclosures to participants and beneficiaries, and the DOL’s enforcement policy.

The proposed DOL regulation update is at  Paper Statement Update. Comments on the proposal are due on or before April 27, 2026.

Background

In general, ERISA requires pension and welfare plans to provide many written notices and disclosures to plan participants and beneficiaries. Some notices and disclosures are required by law, while others must be provided upon request. Historically, notices and disclosures were delivered by mail.

Section 105 of ERISA

Among the notices and disclosures is the requirement to provide periodic pension benefit statements pursuant to section 105 of ERISA. For individual account plans, such as a section 401(k) plan, that allow a participant or beneficiary to direct the investment of funds in his or her account, section 105 requires that a statement be provided at least quarterly. The statement must include the value of the account as well as other required information.

For defined benefit plans, section 105 requires that a benefit statement be provided at least once every three years to a participant with a nonforfeitable accrued benefit who is employed by the employer maintaining the plan at the time the statement is provided. A participant or beneficiary may also request a benefit statement at any time.

As an alternative to furnishing a pension benefit statement every three years, section 105 allows a defined benefit plan to instead notify participants that a pension benefit statement is available and explain how the participant can obtain the statement. In either case, section 105 allows the pension benefit statement to be delivered in written, electronic, or another appropriate form to the extent such form is reasonably accessible to the participant.

DOL “Safe Harbor” Regulations

The DOL has issued two ERISA regulations (known as “safe harbor regulations”) that permit plan administrators to provide required documents and notices through electronic media. The first regulation was issued in 2002 and the second in 2020. They are commonly referred to as the 2002 safe harbor and the 2020 safe harbor regulations.1

2002 Safe Harbor

The 2002 safe harbor regulation applied to both pension and welfare benefit plans and established two categories of participants and beneficiaries who could receive electronic disclosures.

The first category includes participants whose employment duties give them electronic access to disclosures as an integral part of their job. Participants in this category have the right to request a paper copy of a specific disclosure, but they do not have the right to opt out of electronic disclosures entirely.

The second category is individuals who give affirmative consent to receive disclosures electronically. The 2002 safe harbor requires that, prior to consenting, the individual be provided with a notice indicating

  1. The types of documents to which the consent would apply;
  2. That consent can be withdrawn at any time without charge;
  3. The procedure for withdrawing consent and for updating the address for receipt of electronically furnished documents or other information;
  4. The right to request and obtain a paper version of an electronically furnished document, including whether the paper version will be provided free of charge; and
  5. Any hardware and software requirements for accessing and retaining the documents.2

Individuals in the second category may fully opt out of electronic delivery at any time by withdrawing their consent.

2020 Safe Harbor

The 2020 safe harbor regulation applied only to pension benefit plans and allows plans to provide documents electronically by default to individuals who provided a valid email address or smartphone number.

Under this regulation, documents may be delivered electronically through one of two methods. The first method is to send an email notifying the recipients that documents are available on a website and providing a hyperlink to the site. The second method is to send an email that includes the required disclosures directly in the email or as an attachment. 

Before using the 2020 safe harbor, plans must send an initial paper notice informing individuals that disclosures will be delivered electronically and that they have a right to opt out at no cost.

Section 338 of SECURE 2.0 Act

Section 338 of the SECURE 2.0 Act added new section 105(a)(2)(E) to ERISA.  This provision requires that at least one pension benefit statement be provided in paper form. 

For an individual account plan that provides for self-directed investments, at least one pension statement must be on paper each calendar year. For a defined benefit plan, at least one pension statement must be provided on paper every three calendar years.

The law provides for two exceptions to the new paper benefit statement requirement.

The first exception is for plans that use the 2002 safe harbor. The second exception is for plans that allow individuals to request electronic delivery, and the statements are delivered electronically in response to that request.

The new paper benefit statement requirement is effective for plan years beginning after December 31, 2025. The law also required that the DOL issue regulations by December 31, 2024.

Proposed Changes

The proposed rules would modify both the 2002 safe harbor regulation and the 2020 safe harbor regulation. 

2002 Safe Harbor Changes

The proposed change to the 2002 safe harbor regulation would add a paragraph that states a benefit statement described in ERISA section 105(a)(2)(E) may be furnished electronically only if the plan first provides a one-time initial notice on paper. This written notice must be provided before the electronic delivery of any pension benefit statement and inform individuals that they have the right to request that all required documents be furnished on paper in written form.

The one-time initial notice requirement would apply with respect to participants who first became eligible to participate, and beneficiaries who first became eligible for benefits, after December 31, 2025. The requirement may be satisfied by using the existing notice described above.

2020 Safe Harbor Changes

The 2020 safe harbor regulations would also be updated. The proposed changes would clarify that any paper benefit statement required by section 105(a)(2)(E) is to be furnished without charge. 

In addition, for plans that provide covered documents electronically pursuant to the 2020 safe harbor, the current rules would be changed:

  1. To permit an individual the opportunity to request that any pension benefit statement required to be provided on paper under ERISA section 105(a)(2)(E) shall instead be furnished by electronic delivery, and
  2. To require that each pension benefit statement furnished on paper shall include
    1. An explanation of how to request that all such statements be furnished by electronic delivery, and
    2. Contact information for the plan sponsor, plan administrator, or other designated representative of the plan, including a telephone number,
  1. To provide that the plan may not charge any fee to a participant or beneficiary for the delivery of any paper statements.

DOL Enforcement Policy

The preamble to the proposed regulations states that, for the period from publication of the proposal until after the issuance of a final regulation, or other applicable administrative guidance, the DOL 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.

Cheiron Observation: The change in law and the proposed update to the regulations impact plans that use electronic delivery of benefit statements. A plan that provides all benefit statements by paper, with no electronic delivery permitted, will not be impacted by these changes.

The law required that the DOL issue regulations by December 31, 2024. Obviously, that did not occur. The enforcement policy is helpful to plans that do use electronic delivery of benefit statements, but those plans will need to review their administrative procedures for providing benefit statements and make adjustments as necessary.

Cheiron is an actuarial consulting firm that provides actuarial and consulting advice. However, we are neither attorneys nor accountants. Accordingly, we do not provide legal services or tax advice.

1 See sections 2520.104b-1 and 2520.104b-31, respectively, of the DOL regulations.

2 See section 2520.104b-1(c)(2)(ii)(C) of the DOL regulations.