The IRS has extended temporary relief allowing plan representatives to witness participant elections or spousal waivers via videoconference until June 30, 2021.
The IRS initially provided relief from the physical presence requirement from January 1, 2020 through December 31, 2020 in IRS Notice 2020-42 in response to the COVID-19 related social distancing restrictions. On December 22, 2020, the IRS extended that relief through June 30, 2020 through IRS Notice 2021-03.
The relief provides that participant elections required to be witnessed by a plan representative or notary public, including spousal consent, may be satisfied using alternative procedures that do not require physical presence. For a participant election witnessed by a notary public, the physical presence requirement is deemed satisfied with remote notarization using live audio-video technology that satisfies certain requirements. For a participant or spousal election witnessed by a plan representative, the physical presence requirement is deemed satisfied if an audio-video system is used that satisfies the following requirements:
- The individual signing the election presents a valid photo ID to the plan representative during the videoconference (transmitting the ID before or after the videoconference is not good enough);
- The video conference is live and allows direct interaction between the participant and plan representative;
- The individual faxes or electronically transmits a legible copy of the signed document to the plan representative on the same day it is signed; and
- After receiving the signed document, the plan representative acknowledges that the signature has been witnessed by the plan representative and transmits the signed document, including the acknowledgement, back to the individual using an electronic medium the individual can easily access.