Spanish SARs and SPDs...

[ESOP Guy]

I am being asked if there is a legal requirement to produce notices in Spanish or other languages for people whose primary language isn't English.

Mind you the client agrees it is a good idea and is trying to get translations done.  They just want to know if there is a requirement and if so which notices. 

[Larry Starr]

There is not a requirement for an actual SPD in the foreign language (but in the mid '70s I was involved in getting the SPD written in both Spanish and Chinese; luckily, we had a Chinese actuary at the insurance company who did the job for that language).  The following should help you understand the requirements:

 

Background: An ERISA plan must provide an SPD to enrollees within 90 days of enrollment. If there is a material modification to the terms of the plan as described in the SPD, the plan must provide a new SPD or an SMM. If the material modification is a reduction of benefits in a health plan, the new SPD or SMM must be provided within 60 days after the effective date of the change. ERISA plans generally must provide an SAR annually to all participants and beneficiaries, though certain plans are exempt from the SAR requirement.

When are the Non-English Language Requirements applicable? The requirements apply if the ERISA plan is in any one of the following categories:

• The plan has fewer than 100 participants at the beginning of the plan year and 25% or more of the participants are literate only in the same non-English language.
• The plan has 100 to 4,999 participants at the beginning of the plan year and 10% or more of the participants are literate only in the same non-English language.
• The plan has 5,000 or more participants at the beginning of the plan year and 500 or more of the participants are literate only in the same non-English language.

What are the Non-English Language Requirements?

• The SPD, SMM, or SAR must include a statement, prominently displayed in the applicable non-English language, explaining how to access the non-English assistance described below.
• The plan must assist the non-English speakers in a manner that provides them with a reasonable opportunity to become informed as to their rights and obligations under the plan. However, the plan is not required to provide anything specific in writing.

[Peter Gulia]

The rule for a summary plan description’s one-sentence notice in a language beyond English is 29 C.F.R. § 2520.102-2(c).

 

https://www.ecfr.gov/cgi-bin/text-idx?SID=566c9993e94aeb7c5b558d9665881abd&mc=true&node=se29.9.2520_1102_62&rgn=div8

 

A similar rule for a summary annual report is 29 C.F.R. § 2520.104b-10(e).

 

https://www.ecfr.gov/cgi-bin/text-idx?SID=0174b0abbf2494451ed1060a968d2a34&mc=true&node=se29.9.2520_1104b_610&rgn=div8

 

The Labor department’s rules for some other kinds of disclosures lack such a provision.

 

Some employee-benefits lawyers sometimes suggest an employer/administrator consider whether a duty under ERISA § 404(a)(1) might call for a communication beyond what those rules specify.

[ESOP Guy]

Thanks for all the good information!