Retirement accounts · Guide
Crypto in your 401(k): what the Labor Department rule actually does
Headlines say Washington “opened 401(k)s to crypto”. The documents say something narrower. Here is what has happened, what is still only proposed, and what it changes for you.
Status checked 4 October 2026 against the Federal Register and the Labor Department's own releases
- You cannot add crypto to a 401(k) by yourself. Your employer's plan decides what is on the menu.
- The 2022 warning is gone. The Labor Department withdrew its “extreme care” guidance in May 2025 and is now neutral.
- The new rule is a proposal, not law. It was published in March 2026; comments closed on 1 June 2026; no final rule has been issued.
- It would not approve crypto. It would give employers a checklist that, if followed, protects them when they choose any investment option.
The timeline
- The warning. The Labor Department's Compliance Assistance Release 2022-01 told 401(k) fiduciaries to exercise extreme care before adding a cryptocurrency option. Few employers did.
- The warning is withdrawn. Release 2025-01 rescinds the 2022 release. The department says it neither endorses nor disapproves of a fiduciary deciding that crypto belongs on a plan menu.
- The executive order. Executive Order 14330 tells the department to re-examine its guidance on “alternative assets” in 401(k) plans within 180 days and to consider safe harbours for fiduciaries. Its list of alternative assets includes actively managed investment vehicles that invest in digital assets.
- The proposed rule. The department proposes “Fiduciary Duties in Selecting Designated Investment Alternatives” (issued 30 March, published in the Federal Register on 31 March at 91 FR 16088). Public comments were due by 1 June 2026.
- Still a proposal. No final rule has been published in the Federal Register. The department's regulatory agenda lists the rule at the stage of analysing comments.
What the proposed rule would do
A 401(k) is governed by a law called ERISA, which makes whoever picks the plan's investments — the fiduciary, usually a committee at your employer — personally responsible for choosing prudently. Fear of being sued is the main reason plan menus are conservative.
The proposal would add a process the fiduciary can follow. It names six things to weigh for any investment option:
- performance
- fees
- liquidity
- valuation
- a performance benchmark
- complexity
A fiduciary who considers those factors objectively and thoroughly would be presumed to have met the duty of prudence, and that judgment would be entitled to significant deference. That is the “safe harbour”.
The proposal is deliberately asset-neutral. It states that ERISA neither requires nor restricts any specific type of investment option. Cryptocurrency is not singled out for approval; digital assets appear as one example of an alternative asset, next to private equity, real estate and commodities.
What it would not do
- It would not require any plan to offer crypto. Employers who do not want it on the menu can keep it off.
- It would not let you opt in on your own. The decision stays with the plan.
- It would not cover brokerage windows. The proposal says self-directed brokerage accounts are not “designated investment alternatives”, so the checklist does not apply to them.
- It would not change how a 401(k) is taxed.
What it means for you today
If you want crypto in a workplace plan, there are two routes, and both depend on your employer:
- A crypto option the plan has switched on. A few record-keepers offer one. ForUsAll, for example, says on its own site that employers can enable a self-directed crypto window and that you can move up to 5% of your 401(k) balance into it.
- A brokerage window. Some plans include a self-directed brokerage account. Where the plan allows it, that account may be able to buy a spot-Bitcoin ETF. Ask your plan administrator what the window permits.
Outside a workplace plan, an individual retirement account is yours to direct. What the different ways of holding bitcoin in an IRA cost is a separate question — the crypto IRA fee calculator works it out, including the plain option of a spot-Bitcoin ETF in an ordinary brokerage IRA.
A bill in the House — H.R. 5748, the Retirement Investment Choice Act, introduced 14 October 2025 — would give the executive order the force of law. It has not moved beyond committee.
Questions
Can I put bitcoin in my 401(k) today?
Not on your own. A 401(k) only offers what your employer's plan offers. You can hold crypto in a 401(k) only if your plan has added a crypto option, or has a self-directed brokerage window that allows crypto funds. Nothing the Labor Department has done changes that.
Is the Labor Department's crypto 401(k) rule final?
No. As of 4 October 2026 it is a proposed rule. It was published on 31 March 2026, comments closed on 1 June 2026, and no final rule has been published.
Does the proposed rule approve crypto for retirement plans?
No. It does not approve or ban any asset. It sets out a process — six factors a plan fiduciary should weigh — and says a fiduciary who follows that process is presumed to have acted prudently. Digital assets are mentioned only as one kind of alternative asset.
What did the Labor Department say in 2022, and is it still in force?
In March 2022 it told plan fiduciaries to exercise extreme care before adding a crypto option. It withdrew that guidance on 28 May 2025 and now says it neither endorses nor disapproves of crypto in a plan menu.
Sources
- DOL Compliance Assistance Release 2022-01 (10 March 2022)
- DOL Compliance Assistance Release 2025-01 (28 May 2025)
- Executive Order 14330, Democratizing Access to Alternative Assets for 401(k) Investors — 90 FR 38921
- DOL proposed rule, Fiduciary Duties in Selecting Designated Investment Alternatives — 91 FR 16088, RIN 1210-AC38
- Unified Agenda entry for RIN 1210-AC38 (rule status)
- ForUsAll — crypto in a 401(k) (provider's own page)
General information, not legal or investment advice. We will update this page when a final rule is published.