Bradley Seff sued Broward County, Florida alleging that Broward County’s employee wellness program violated the Americans with Disabilities Act (“ADA”). The District Court for the Southern District of Florida granted Broward County’s Motion for Summary Judgment, finding that the employee wellness program complied with the ADA. On August 20, 2012, the Eleventh Circuit Court of Appeals upheld that decision.
Broward County’s wellness program offered biometric screening and a confidential health risk assessment. If the screening revealed that an employee had certain conditions, such as asthma, diabetes, kidney disease or hypertension, the employee could participate in a disease management coaching program and receive co-pay waivers for certain medications. Employees were not required to participate in the wellness program, but were assessed $10 a week, deducted from their paycheck, if they were covered by Broward County’s health plan and did not participate in the wellness program.
Seff, an employee who paid these charges for several months, filed a class action suit alleging that the wellness program violated the ADA by requiring non-voluntary medical examinations. With limited exceptions, the ADA disallows employers from requiring employees to undergo medical examination. The district court granted summary judgment, holding that the safe harbor to the ADA that exempts bona fide benefit plans from complying with the list of the ADA’s prohibited acts applied since (1) the program was part of a bona fide benefit plan and (2) the program was based on underwriting, classifying, or administering risk and was not a subterfuge for discrimination. Upon Seff’s appeal, the Eleventh Circuit agreed that the employee wellness program fell within the ADA’s safe harbor, as a term of the employer’s group health plan, because the employer’s insurer sponsored the program as part of its contract to provide a group health plan, the program was only available to group health plan enrollees, and the employer communicated the wellness program as part of its group health plan in employee communication materials.
Many observers were surprised that the district court did not address whether Broward County’s wellness program was “voluntary,” relying instead on the ADA’s safe harbor provision. In examining employer-sponsored wellness programs, the EEOC has focused on whether the programs are “voluntary.” There is little guidance, from either courts or the EEOC defining whether or how a wellness program will be considered voluntary if it uses incentives for participation or penalties for non-participation, and unfortunately, the Eleventh Circuit’s ruling does not address this issue. However, the Court’s ruling does give employers another idea on how to structure their wellness programs to comply with the ADA. While employers should still be cautious about making sure their wellness programs are voluntary, they may be able to rely on the Eleventh Circuit’s “safe harbor” analysis if they ensure that their wellness programs are incorporated into their health plan documents and are communicated as a part of their health plans. Of course, this case does not bind the EEOC or courts outside the Eleventh Circuit, so this is still an area that employers will need to watch closely for further developments.
Today’s post was contributed by Maureen M. Maly.