No, posting required notices on a shared computer or kiosk is not sufficient to meet the DOL’s Electronic Disclosure rules. The preamble to the final 2002 regulations specifically states that merely posting documents to a shared computer kiosk in a common area at a workplace is not an appropriate means by which to deliver documents required to be furnished to participants.
As many employers head into open enrollment season, it is important to remember best practices on notice distribution requirements, including the specific rules surrounding electronic distribution. Required notices, such as an SPD, CHIP Notice, HIPAA Special Enrollment Rights notice, Medicare Part D Disclosure Notice, etc., may be sent via electronic means only to participants who have work-related computer access as an integral part of their job. If an employee does not have work-related computer access, the only way the employee can receive documents electronically is if they give affirmative consent to receive benefit-related notices electronically. The consent must explain what documents will be distributed electronically, that consent can be withdrawn at any time, procedures for withdrawal, and what software may be required to access the documents. If the employee does not have a work-issued email address, the employer may request a personal email address to use for distribution.
If sending by email, the plan administrator must take the necessary steps to ensure that the email system results in actual receipt of transmitted information (which would be satisfied by return receipts or failure to deliver notices), protects the participant's confidential information, maintains the required format and content requirements, includes a statement as to the significance of the document, and provides a statement as to the right to request a paper version.
Alternatively, the documents may be posted to a site such as a company intranet website, BenAdmin portal, or HR information system, but the employees must still have electronic access as an integral part of their job in order to access the documents this way. Importantly, if posting on one of these sites, it is not enough to simply post the documents on the intranet. Notification must be sent to each participant notifying them of the document’s availability, the significance, and their right to request a paper copy. The notice may be a paper document or it may be electronic (email). If it is sent via email, the above procedures must be followed.
If the employee does not have work-related computer access as an integral part of their job, and they do not consent to access documents electronically or authorize the employer to send benefits documentation to a personal email address, there is really no compliant method other than delivering by paper (either by hand or mail). If the employer provides the documents in person, it is advisable for them to get the employee’s signature confirming receipt. Otherwise, the employer has no documentation that they have distributed the notices. If delivering by mail, the employer should document their procedures and the date that the documents were mailed to specific employees. The employer should document and retain all methods of delivery used for each employee.
For further information regarding electronic disclosure rules, please ask your broker or consultant for a copy of the NFP publication Electronic Distribution Rules: A Guide for Employers.