On May 28, the Department of Labor’s (DOL’s) Employee Benefits Security Administration (EBSA) announced it has rescinded its 2022 compliance guidance that discouraged retirement plan fiduciaries from including cryptocurrency options in retirement plan investment choices. The EBSA announcement specified that the agency is “neutral” on the issue of recommending inclusion of crypto in retirement plan investment options.

The 2022 compliance guidance (Compliance Assistance Release No. 2025-01) directed plan fiduciaries to use “extreme care” in deciding whether to include crypto investment options in a retirement plan. That is the guidance that EBSA has now rescinded.

“The Biden Administration’s Department of Labor made a choice to put their thumb on the scale,” said DOL Secretary Lori Chavez-DeRemer. “We’re rolling back this overreach and making it clear that investment decisions should be made by fiduciaries, not D.C. bureaucrats.”

Prospects: Including a crypto option in a retirement plan’s investment menu will be subject to all the usual fiduciary rule considerations. EBSA made it clear that its rescission of Compliance Assistance Release 2025-01 does not mean it either endorses or disapproves of a fiduciary’s decision to include or exclude a crypto option in a retirement plan’s investment menu.

NAIFA Staff Contact: Jayne Fitzgerald – Director – Government Relations, at jfitzgerald@naifa.org