While the US Department of Labor has long published Spanish-language translations of its model COBRA notices, employers are often left guessing as to when they should actually use them. There is no explicit requirement to provide COBRA notices in languages other than English, and, to date, courts have not required it. In fact, prior decisions have specifically held that there is no requirement that COBRA notices be translated into a foreign language. However, two pending cases in the United States District Court for the Middle District of Florida could reveal situations in which employers with a significant multilingual workforce should provide translated versions of their COBRA election materials. The cases also expose the potential employee relations issues (and corresponding class action risk) associated with English-only COBRA communications.

In Vazquez v. Marriott International, a Spanish-speaking employee alleged she went without health insurance for two months because her employer’s English-only COBRA paperwork failed to properly inform her of her rights to continue her medical benefits. The plaintiff argued that this violated COBRA’s requirement to provide notices “in a manner calculated to be understood by the average plan participant.” 29 C.F.R. § 2590.606-4. In her complaint and accompanying affidavit, she alleged that her employer’s average plan participant would not be able to understand COBRA materials presented in English. Late last month, the Middle District of Florida denied her employer’s motion to dismiss, allowing the case to proceed into further litigation and possibly resolve the developing question of whether a plan is required to provide translated COBRA packets if its “average plan participant” primarily speaks a non-English language.

Earlier this year, the same court rejected a similar language-based claim, but left the door open to future plaintiffs seeking relief on the same grounds. In Valdivieso v. Cushman & Wakefield, Inc., an employee alleged that he should have been provided a Spanish-language COBRA notice because he “cannot read English very well.” There, the Middle District of Florida granted the employer's motion to dismiss the language-based allegations because the plaintiff had not pled sufficient facts to establish that he was an average plan participant. The order implies that in certain circumstances, a Spanish-speaking employee could be considered an “average plan participant,” which could potentially require her plan to include a Spanish option for electing COBRA.

Importantly, both cases sit in the context of increased legislative efforts to boost language-based accessibility. The Affordable Care Act imposed new foreign language notices, including the disclosures required under Section 1557 of the Affordable Care Act and the Spanish/Navajo/Tagalog disclosures required in certain Summaries of Benefits and Coverage and benefit denial letters. Additionally, ERISA instructs certain employers to prominently publish advisories in summary plan descriptions that notify participants of their right to seek assistance in their home language. Because COBRA is silent on the issue of foreign-language translations, it will be up to the courts to decide an employer’s obligation to translate their COBRA materials.

Both cases are still in the early stages of litigation and may not necessarily result in any binding changes to COBRA administration – or any new requirement to provide COBRA notifications in alternative languages. They are also part of the wave of recent class actions seeking penalties based on numerous different types of alleged COBRA errors, ranging from minor cosmetic omissions to the failure to send the notices altogether. While the courts review these actions, employers should take proactive steps to take to tighten their COBRA administration.

One possible approach would be to mirror the disclaimers required by ERISA for certain summary plan descriptions. While that requirement does not explicitly extend to COBRA communications, applying a similar approach may offer a practical way to help reduce potential liability where the language of the “average plan participant” may not be clear. For example, with a workforce that includes a significant population of Spanish speakers, the employer could provide the COBRA notice in Spanish or, alternatively, include a line in Spanish advising participants of the process for receiving a copy of the materials in Spanish. Because each workforce is different, there is no “one size fits all” approach under current guidance. For that reason, employers should take a close look at their COBRA procedures and consider whether they are truly designed to be understood by the “average plan participant.”