A terminated employee sued his former employer alleging that the COBRA election notice provided by the employer (in its role as group health plan administrator) was not "written in a manner calculated to be understood by the average plan participant" as required by COBRA in Valdivieso v. Cushman & Wakefield, Inc., 2017 WL 2191053 (M.D. Fla. 2017). English was the second language for this native Spanish-speaking former employee. In addition to certain other allegations related to specifics of the COBRA Notice, he alleged that the notice should have been provided in Spanish.
The court allowed his other claims related to the COBRA notice itself to continue but dismissed this claim, explaining that this 68 years old individual with English as a second language was not "an average plan participant" within the meaning of the COBRA regulations. Although the former employee may not have understood the notice, the court concluded, there was no evidence it would not be understood by an average plan participant. This decision is consistent with the COBRA regulations, as COBRA does not required notices to be translated into other languages for individuals who do not speak English. In contrast, language assistance or translation services are required for certain other benefits-related documents, such as summary plan descriptions (SPDs) and claims notices.
Employers should still consider offering important notices, including COBRA, in languages spoken by a significant number of its employees, to ensure that its employees and former employees understand their rights, and to avoid having to end up in court defending a lawsuit.
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