Sep 22, 2020
One of the good things to come out of the blizzard of rules and regulations in response to COVID-19 is Dept. of Labor (DOL) Notice 2020-1. The DOL recognizes that this year, employers face unique challenges in providing required notices and disclosures to their employees.
In response, the DOL offers flexibility in providing notices and disclosures during the Outbreak Period. Remember that the Outbreak Period runs until 60 days after the Federal government declares the national emergency to be over.
During the Outbreak Period, the DOL will not enforce the normal ERISA notice and disclosure requirements as long as “the plan…act[s] in good faith and furnish[es] the notice, disclosure, or document as soon as administratively practicable under the circumstances. Good faith acts include the use of electronic alternative means of communicating with plan participants and beneficiaries who the plan fiduciary reasonably believes have effective access to electronic means of communication, including email, text messages, and continuous access websites.”
The DOL also states that the Dept. of Health and Human Services (HHS) has agreed to provide similar flexibility for requirements in the Public Health Service Act (PHSA) to plans that are not subject to ERISA. The IRS will also take a similar approach to notice requirements under their jurisdiction.
How Could this Help During Open Enrollment Season?
Many employers have furloughed, but not laid off, large numbers of employees. Some may not have online access to the employer’s systems that meet the DOL electronic disclosure safe harbor requirements. The flexibility to provide information in other means could help in this situation.
We are particularly interested in the ability to post the information on “continuous access websites.” For example, an employer could post their benefits book and Summary of Benefits and Coverage (SBC) on the company website. They could then inform employees, whom they believe to have Internet access, where to find the information.
Obviously, employers need to make a reasonable effort to provide important plan information to participants, but this flexibility and enforcement relief is welcome news for employers that are struggling with employee communications during these difficult times.
