On February 24, 2026, the Employee Benefit Security Administration (EBSA) issued a proposed regulation (the Proposal) designed to modify the existing safe harbors regarding electronic delivery of certain notices, which would carry out section 338 of the SECURE 2.0 Act of 2022.[i] While modest in design, if enacted, the Proposal called, “Requirement to Provide Paper Statements in Certain Cases – Amendments to Electronic Disclosure Safe Harbors,” could increase mailing costs, require recordkeeper system updates, and introduce new compliance challenges for plan sponsors relying heavily on electronic disclosure.
Here’s What You Really Need to Know
- Plans typically rely upon one of two safe harbors for electronic disclosures: (1) 2002 Safe Harbor or (2) 2020 Safe Harbor. For the majority of plans relying on the 2002 Safe Harbor, the Proposal requires action starting in January 2026.
- Even though January 2026 was the compliance date (which has clearly already passed at the time the Proposal was issued in February), the Proposal is just that – a proposal. Comments have been requested and are due on April 27, 2026. Until a final regulation is published, good faith compliance is required, and the Department of Labor (DOL) will not take action against plan sponsors.
- The Proposal implements a requirement for defined contribution (DC) plans to provide at least one paper benefit statement each plan year, and defined benefit (DB) plans would need to provide at least one paper benefit statement every three years, unless a participant affirmatively elects electronic delivery.
Let’s Dive In
ERISA retirement plan administrators are required to use delivery methods that are reasonably calculated to ensure actual receipt when providing required disclosures to participants and beneficiaries. These were traditionally provided by hand or first-class mail, until the DOL issued safe harbor regulations in 2002 regarding the use of electronic media for the delivery of required disclosures.[ii]
2002 Safe Harbor
The 2002 Safe Harbor applied only to employees with access to electronic documents as part of their job (“wired-at-work”) or to those who affirmatively consented to e-delivery. Under the 2002 Safe Harbor, employees provide affirmative consent to electronic disclosure.
2020 E-Delivery Safe Harbor
In 2020, the e-delivery final regulation provided an additional safe harbor method for the electronic disclosure of required notices greatly expanding the availability of this option, allowing electronic delivery to:[iii]
- Any participant, beneficiary, or other individual who provides an email address or mobile number to the plan administrator
- Any employee that is provided an employer email address for work purposes
The key difference from the 2002 and 2020 safe harbors is that the 2020 Safe Harbor does not require affirmative consent; rather, consent was assumed given that there was an email address provided or given for work purposes and an initial notice was provided in paper explaining the rights of the individual. Covered notices under the 2020 Safe Harbor include all required plan materials, such as:
- Retirement benefit statements
- Safe harbor notices
- Summary annual reports
- Summaries of material modifications
- Blackout notices
This safe harbor does not apply to documents or information provided only upon request.
SECURE 2.0 Paper Requirement
Section 338 of SECURE 2.0 introduced the requirement that starting for plan years after December 31, 2025, participants who first become eligible must receive a one-time paper notice explaining their rights to request paper copies of all required disclosures, and their ability to opt out of paper delivery if they prefer electronic delivery. The provision also requires that participants must receive at least one paper benefit statement per calendar year for DC plans, and one paper benefit statement at least once every three years for DB plans, unless the participant has affirmatively opted out.[i]
Additionally, the 2020 Safe Harbor provided participants with the right to one free paper copy on request of retirement benefit statements previously furnished electronically, with additional copies subject to a charge. The Proposal eliminates the ability to charge for additional paper copies of previously furnished electronic benefit statements. Plans would need to provide paper copies upon request at no cost to the participant.
Comments on the Proposal are due within 60 days of publication in the Federal Register, on or before April 27, 2026. In addition, the DOL has specifically requested comments on the following:
- The prevalence of electronic disclosure prior to SECURE 2.0
- Use of the 2002 Safe Harbor versus the 2020 Safe Harbor at present
- Whether plans may be inclined to shift back to the 2002 Safe Harbor for wired-at-work participants
- The level of reliance on service providers for compliance and legal notice preparation
- Assumptions regarding mailing costs for paper disclosures
Action Items for Plan Sponsors
Plan sponsors can prepare for potential changes to the notice delivery requirements by:
- Reviewing how your plan currently delivers benefit statements to participants and identifying any process gaps
- Determining whether the plan relies on the 2002 Safe Harbor or 2020 “notice and access” Safe Harbor, as this will impact required adjustments
- Confirming your recordkeeper’s and other vendors’ capabilities for supporting annual paper delivery, including volume, fulfillment, and tracking
- Evaluating vendor contracts in light of the new “no-fee” paper copy requirement
- Working with internal stakeholders to develop procedures and plan for updated notices for newly eligible employees beginning in 2026, ensuring timely onboarding and compliant delivery
- Monitoring for the final regulation, and considering submission of comments if the operational cost or assumptions appear unrealistic for your plan or participants
[i] U.S. Department of Labor, Employee Benefits Security Administration, “Requirement to Provide Paper Statements in Certain Cases—Amendments to Electronic Disclosure Safe Harbors,” Federal Register 91, no. 37 (February 25, 2026): 9213–9237, https://public-inspection.federalregister.gov/2026-03723.pdf
[ii] Pension and Welfare Benefits Administration, Final Rules Relating to Use of Electronic Communication and Recordkeeping Technologies by Employee Pension and Welfare Benefit Plans, 67 Fed. Reg. 17264 (Apr. 9, 2002).
[iii] U.S. Department of Labor, Employee Benefits Security Administration, Default Electronic Disclosure by Employee Pension Benefit Plans Under ERISA, 85 Fed. Reg. 31884 (May 27, 2020).
[iv] Setting Every Community Up for Retirement Enhancement (SECURE 2.0) Act of 2022, Division T of the Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, 136 Stat. 4459 (Dec. 29, 2022).