Some of our company’s employees speak English as a second language. Are we required to provide these employees translated summary plan descriptions (SPDs), summaries of material modifications (SMMs) or summary annual reports (SARs) distributed for our ERISA health and welfare benefit plans?
Although ERISA requires employer-sponsored health and welfare benefit plans to distribute SPDs, SMMs and SARs to all plan participants, it does not require that they be translated into languages other than English. However, if an ERISA plan covers at least the number of participants indicated by regulations who are literate only in the same non-English language, the plan is required to provide assistance to participants in that language and to prominently display the availability of the assistance in the SPD/SMM/SAR. Alternatively, the plan may choose to provide the SPD/SMM/SAR translated to the non-English language(s), even though it’s not required.
The goal of SPDs/SMMs/SARs is to adequately inform participants of their rights and obligations under the health and welfare benefit plan (SPDs), changes to the plan (SMMs) and the financial status of the plan (SARs). Providing these notices in English to individuals who do not speak English would not adequately inform the participants.
Under ERISA, whether a health and welfare benefit plan must provide assistance to its employees in a language or languages other than English and whether the plan’s SPD/SMM/SAR need to contain a non-English language assistance statement is based on the size of the plan and the percentage of plan participants who are literate only in the same non-English language. Keep in mind that only employees or former employees (e.g., retirees) who are covered by the plan are counted as participants, not other covered individuals (e.g., spouses and dependents).
Note that the language assistance requirements are different for the Summary of Benefits and Coverage (SBC) group health plans and health insurance issuers are required to provide to eligible and enrolled plan participants under the Affordable Care Act (ACA). SBCs must accurately describe the benefits and coverage under the plan and be “presented in a culturally and linguistically appropriate manner.” The latter requirement is triggered if the plan’s SBC is provided to individuals in any county where at least 10% of the population residing in the county is literate only in the same non-English language (as determined based on U.S. Census data).
The assistance a plan must provide does not need to be in the form of written materials, but it must be given in the non-English language common to the participants in a way that gives them a reasonable opportunity to become informed of their rights and obligations under the plan. Typically, this would require the plan to have a contact person fluent in the non-English language who could inform participants of their rights and obligations. As noted earlier, some plans choose to translate SPDs/SMMs/SARs for their non-English speaking participants, even though it’s not required.
If it is determined that a plan is required to provide language assistance, a prominent statement in the applicable non-English language or languages must appear in the plan’s SPD/SMM/SAR, notifying participants that non-English language assistance is available and explaining how to obtain it. This statement should appear at the beginning of the SPD/SMM/SAR or on its cover. WTW recommends inserting the language in the introductory section of an SPD/SMM.
The Department of Labor has provided the following sample language, to be written in the applicable non-English language, that plans may use for this notice:
“This booklet contains a summary in English of your plan rights and benefits under __________ Plan. If you have difficulty understanding any part of this booklet, contact __________, the plan administrator, at his/her office: __________. Office hours are __________. You may also call the plan administrator’s office at __________ for assistance.”
