Many workplaces in America have a portion of the workforce for whom English is not the primary language. Presumably employers want to ensure clarity in all exchanges of information with their employee population, and where language is an issue, measures are taken to facilitate communication.
In the benefits area, language is very important, for purposes of function and principle, as well as a matter of legal compliance. Both the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and The Affordable Care Act (“ACA”) have specific requirements that assistance be offered in non-English language under certain circumstances.
ERISA Requirements
There is no requirement under ERISA that summary plan descriptions (“SPDs”) and summaries of material modifications be provided in any language other than English. However, where a plan covers a large enough population of participants who are only literate in the same non-English language, assistance in that non-English language must be offered. Some examples of assistance would be meeting with an interpreter to help the participant complete forms with the administrator, or having someone available to interpret when a non-English speaker calls with questions. This requirement applies in the following situations:
- Plans covering 100 or more participants must provide language assistance if the lesser of (a) 10% of participants, or (b) 500 participants (or more) are literate only in the same language
- Plans covering less than 100 participants must provide language assistance if 25% or more of the participants are literate only in the same language
A statement must be provided, either at the beginning of the document or on the cover, in the applicable non-English language, offering language assistance and explaining the procedures that individuals must follow to obtain the assistance.
Affordable Care Act Requirements
The ACA requires that certain group health plan materials be provided in a “culturally and linguistically appropriate manner.” The group health plan materials at issue include the summary of benefits and coverage (“SBC”) and appeal notices under the enhanced group health plan claims procedures.
The rules generally provide that in specified counties of the United States, plans and insurers must provide interpretive services and written translations upon request, in certain non-English languages. The “applicable counties” are those in which at least 10% of the population residing in the county is literate only in the same non-English language. This determination is based on U.S. Census data and includes four languages: Spanish, Chinese, Tagalog, and Navajo. The list of applicable counties can be found on the Centers for Medicare and Medicaid (“CMS”) website. Employers and insurers may voluntarily offer these services to participants who do not live in an applicable county as well.
- SBCs
- SBCs sent to addresses in an applicable county must include a statement clearly indicating how to access the language services provided by the plan (or insurer). This statement should be included on the page of the SBC with the “Your Rights to Continue Coverage” and “Your Grievance and Appeals Rights” sections.
- Written translations of the SBC must be provided upon request in the required non-English languages. In order to assist with compliance with this language requirement, written translations of the SBC template and uniform glossary in the four applicable languages are available on the CMS website, along with an oral translation (in MP3 format) in Navajo.
- Claims Notices
- Claims notices sent to addresses in an applicable county must include a statement, prominently displayed in the non-English language, clearly indicating how to access the language services provided by the plan or insurer (sample language, in each of the four languages, appears in the Department of Labor’s model claims determination notices);
- Oral language services (such as a telephone customer assistance hotline) must be provided that include answering questions in any applicable non-English language and assistance with filing claims and appeals (including external review) in any applicable non-English language; and
- Upon request, provide a notice in any applicable non-English language.
Best Practices
Employers who have non-English speaking workers in numbers that do not trigger the ERISA and/or the ACA requirements may still wish to offer language assistance to these employees. This is obviously a good strategy where there may be doubt about whether the exact number of non-English-literate employees is unknown. But even if not required, it is a best practice, because it ensures clear communication, positive employee relations, and sets a procedure in place for future growth of a diverse population.