A federal district court in Florida has ruled that COBRA does not require an employer, acting in its role as group health plan administrator, to translate COBRA Election Notices into terminated employees’ non-English native language.
Law. Although employers must provide language assistance or translation services when furnishing certain benefits-related documents, COBRA does not say the mandated notices must be translated into a non-English language for a qualified beneficiary who does not speak English. Instead, COBRA merely requires employers to provide COBRA-mandated notices that are “written in a manner calculated to be understood by the average plan participant.”
Background. In Valdivieso v. Cushman & Wakefield, Inc., a terminated employee who spoke Spanish as his primary language sued his former employer after he received a COBRA Election Notice. Specifically, the former employee alleged that the employer had violated COBRA’s requirements for Election Notices because the one he received was written only in English. The former employee also claimed that the notice violated COBRA’s requirements because it did not specify the date on which coverage would end or the address to which premium payments should be sent.
District Circuit. The district court dismissed the former employee’s initial claim, finding that at 68 years old and with English as his second language, he was not an “average plan participant” within the meaning of COBRA. The court noted that while the employee may not have understood the notice, there was no evidence that it would not be understood by an “average plan participant.”
Interestingly, the court allowed the former employee’s other claims to continue, finding that COBRA regulations required Election Notices to include an explanation of: (i) the maximum period for which COBRA coverage will be available; (ii) the COBRA coverage end-date; and (iii) the address to which COBRA premium payments should be sent. Therefore, because the employer’s notice did not contain this information, the court determined that the former employee had stated a plausible claim for COBRA violations.