Mind the Gap: When Your Retirement Plan Document, Plan Operations, and Participant Communications Do Not Match
A Guide to Getting Your Qualified Retirement Plan Documents in Sync Before 2026 Open Enrollment
Most compliance problems announce themselves. This one does not. Your plan has been operating under the CARES Act, SECURE 1.0, and SECURE 2.0 for years, your participants have received communications describing those features, and your recordkeeper has administered them faithfully. The only thing that could be missing is the plan language. That gap is permitted by law, but not for much longer, and if you are about to finalize plan highlights, enrollment materials, plan notices, or similar materials for 2026, the gap could be written into another round of participant communications.
Why This Year-End Is Different
For most private-sector qualified retirement plans, December 31, 2026, is the deadline to adopt plan amendments reflecting the SECURE Act of 2019 (SECURE 1.0), the Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES), the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Relief Act), and the SECURE 2.0 Act of 2022, along with regulations issued under those laws.[1]
The deadline is not the same for every plan. A qualified plan that is neither a governmental plan nor an applicable collectively bargained plan generally faces a December 31, 2026, deadline. An applicable collectively bargained qualified plan generally has until December 31, 2028, and a governmental qualified plan generally has until December 31, 2029. Parallel deadlines apply to 403(b) plans: December 31, 2026, for a 403(b) plan not maintained by a public school, December 31, 2028, for an applicable collectively bargained 403(b) plan of a Section 501(c)(3) organization, and December 31, 2029, for a public-school 403(b) plan.
What to Do Next (and Before Open Enrollment if Possible)
First, plan sponsors should identify provisions implemented under CARES, SECURE 1.0, SECURE 2.0, and the Relief Act for which no amendment has yet been adopted, working with their recordkeeper and counsel as needed to make such determinations and to conform plan language to actual operation, using the table below as applicable. Because open enrollment communications (and sometimes platform configurations) describe plan terms, best or better practice would include finishing the amendment work before locking down such participant materials, so the plan document, administration, and participant communications sing in harmony with the same hymnal.
Next, confirm the deadline for your specific plan (as noted above). Third, consider running any amendments by your recordkeeper, payroll administrator, and legal counsel prior to adoption. Pay special attention to amendments involving Roth catch-up contributions because they are tricky, so you understand what to do and what to avoid. Finally, maintain proper documentation for efficient planning, sync up open enrollment materials as needed, and hopefully enjoy the chorus that ensues.
What Plan Amendments Need to Be Adopted by December 31, 2026
The table below lists items for CARES, SECURE 1.0, and SECURE 2.0 with December 31, 2026, adoption deadlines for nongovernmental, non-collectively bargained plans. Items marked “if adopted” require plan language only if the plan sponsor implemented the optional feature.
| Issue | Qualified plan types that may be affected | Required amendment | Source of law |
| Coronavirus-related distributions | Defined contribution plans | If adopted, document the distribution feature, eligible accounts, and any lower plan-specific dollar limit | CARES Act; Notice 2024-2 |
| Increased plan loan limit | Plans that raised loan limits for qualified individuals | If adopted, document the temporary higher loan limit or the lower plan-specified limit | CARES Act; Notice 2024-2 |
| Suspended and extended loan repayments | Plans that delayed loan repayments | If adopted, document the suspension period, extension period, and repayment re-amortization approach | CARES Act; Notice 2024-2 |
| Waiver of 2020 required minimum distributions | Defined contribution plans and 403(b) plans | Document the plan’s treatment of 2020 RMDs (Required Minimum Distributions), extended 2020 RMDs, default elections, and rollover treatment | CARES Act; Notice 2024-2 |
| Relief Act disaster distributions and loans | Plans that used the 2020 disaster relief | If adopted, document disaster withdrawals, increased loan limits, and loan payment deferrals | Relief Act; Notice 2024-2 |
| Higher QACA (Qualified Automatic Contribution Arrangement) automatic deferral cap | 401(k) and 403(b) plans with a qualified automatic contribution arrangement | If adopted, document the increased maximum automatic deferral percentage above 10 percent | SECURE 1.0 |
| Safe harbor nonelective contribution changes | 401(k) plans using the Actual Deferral Percentage (ADP) safe harbor nonelective contribution | If relied upon, conform notice and mid-year adoption timing provisions | SECURE 1.0 |
| Lifetime income portability | Defined contribution and 403(b) plans | If adopted, document distribution and transfer rights for discontinued lifetime income investments | SECURE 1.0 |
| Qualified birth or adoption distributions | Defined contribution and 403(b) plans | If adopted, document the $5,000 limit, one-year window, and three-year recontribution rule | SECURE 1.0 and SECURE 2.0 |
| Long-term part-time employee eligibility, two-year rule | 401(k) and 403(b) plans requiring a year of eligibility service | Mandatory for plan years beginning on or after January 1, 2025, document eligibility after two consecutive 12-month periods with at least 500 hours of service per year, disregarding 12-month periods beginning before January 1, 2023; the earlier SECURE 1.0 three-year rule remains relevant for 401(k) plan years beginning before 2025, where applicable | SECURE 1.0 and SECURE 2.0 |
| Pension plan in-service distributions at age 59½ | Defined benefit and money purchase pension plans | If adopted, document the lowered in-service distribution age | Miners Act section 104; Notice 2024-2 |
| Automatic enrollment mandate for newer plans | 401(k) and 403(b) plans subject to Code section 414A | Mandatory if applicable. Document Eligible Automatic Contribution Arrangement (EACA) terms, default contributions, permissible withdrawals, and statutory exceptions | SECURE 2.0 |
| Increased catch-up limit for ages 60 through 63 | Plans permitting catch-up contributions | If adopted, state clearly whether the plan incorporates the higher limit | SECURE 2.0 |
| Student loan matching contributions | 401(k), SIMPLE 401(k), and 403(b) plans | If adopted, document the match design, claim procedures, and matching frequency | SECURE 2.0 |
| Emergency personal expense distributions | Defined contribution and 403(b) plans | If adopted, document the annual limit, $1,000 cap, self-certification, and repayment rules | SECURE 2.0 |
| Pension-linked emergency savings accounts | Individual account plans | If adopted, document eligibility, contribution limits, and distribution mechanics | SECURE 2.0 |
| Benefit overpayment recovery practices | Qualified plans and 403(b) plans | As needed, align plan terms with recoupment practices, including any decisions to forgo recovery | SECURE 2.0 |
| Increased mandatory cash-out threshold | Qualified plans and 403(b) plans | If adopted, document the increase from $5,000 to $7,000 | SECURE 2.0 |
| Top-heavy testing for excludable employees | Plans performing separate top-heavy testing | If adopted, document separate testing of excludable and non-excludable employees | SECURE 2.0 |
| Hardship distribution self-certification | 401(k) and 403(b) plans permitting hardships | If adopted, document participant certification of the hardship event and amount needed | SECURE 2.0 |
| Domestic abuse victim distributions | Defined contribution plans | If adopted, document the limit, one-year window, self-certification, and repayment rights | SECURE 2.0 |
| Elimination of lifetime RMDs from Roth accounts | Plans with designated Roth accounts | Mandatory. Remove pre-death RMD requirements for designated Roth accounts | SECURE 2.0 |
| Terminal illness tax exception and repayment treatment | Qualified plans and 403(b) plans with otherwise permissible distributions | If adopted, for otherwise permissible distributions, document physician certification, the 10% additional-tax exception, and three-year recontribution rights; terminal illness does not itself create a new distributable event for restricted 401(k) or 403(b) sources. | SECURE 2.0; Notice 2024-2 |
| Surviving spouse election under the RMD rules | Defined contribution and other RMD-covered plans | If adopted, document the spouse’s election to be treated as the employee; regulatory mechanics should track final or subsequent IRS guidance | SECURE 2.0 |
| Qualified federally declared disaster distributions | Defined contribution and 403(b) plans | If adopted, document the $22,000 per-disaster limit and recontribution rules | SECURE 2.0 |
| Recognition of Tribal domestic relations orders | Qualified plans processing domestic relations orders | Mandatory. Confirm an order is not disqualified solely because it arises under Tribal law | SECURE 2.0 |
| Mandatory Roth catch-up contributions | 401(k) and 403(b) plans permitting catch-ups | Mandatory. Document affected participants, FICA (Federal Insurance Contributions Act) wage measurement, aggregation, deemed Roth elections, and correction methods. Notice 2023-62’s transition period generally ended after 2025; final regulations generally apply beginning in 2027. | SECURE 2.0; final catch-up regulations |
| Roth treatment of employer matching and nonelective contributions | Plans permitting Roth employer contributions | If adopted, document eligibility, full vesting, election timing, and irrevocability | SECURE 2.0; Notice 2024-2 |
| Family attribution rule reform | Plans affected by controlled group or affiliated service group determinations | As needed, conform any plan language inconsistent with the revised spousal and parent-child attribution rules | SECURE 2.0; 2024 Required Amendments List |
| Termination or merger before year-end | Any plan terminating or merging in 2026 | As needed, adopt all outstanding amendments no later than the termination date, which accelerates the deadline | Plan termination document-update requirement |
Conclusions and Questions to Consider
The gap between what your plan document says and what your plan does is the kind of problem that stays quiet until an audit, participant claim, or set of enrollment materials results in unwelcome noise. The checklist below expands on the considerations above and can be examined with your recordkeeper, payroll provider, and legal counsel, ideally before finalizing this year’s open enrollment package.
- Which CARES, SECURE 1.0, SECURE 2.0, and Relief Act provisions did our plan implement?
- What effective date did we use for each implementation?
- Which deadline applies to our plan?
- Does our plan text address the mandatory Roth catch-up mechanics, including catch-up eligibility exclusions, FICA wage aggregation, deemed Roth elections, and available correction methods?
- If we use a pre-approved or prototype document, has the provider issued the necessary amendments, or must we adopt our own supplemental amendment?
- Do our enrollment materials for 2027, summary plan descriptions, and summaries of material modifications work together (and with our executed amendments)?
Foley’s employee benefits practice group regularly guides plan sponsors through document restatement and amendment projects, including retroactive amendment work under Notice 2024-2, mandatory Roth catch-up implementation, pre-approved and individually designed document coordination, and the alignment of plan documents with summary plan descriptions and participant communications. Foley routinely uses this experience to advise all types of clients on the nuances of retirement plan administration in an ever-changing regulatory environment, including in the complex contexts of post-acquisition integration, correcting past and avoiding future compliance issues, plan winddowns, and many others.
[1] See IRS Notice 2024-2.
