The U.S. Court of Appeals for the 11th Circuit recently held in Seff v. Broward County that a wellness program complied with the Americans with Disability Act (ADA) safe harbor provisions.
Participants in the Broward County group health plan were eligible to take part in a wellness program. The wellness program included a biometric screening (including a test for glucose and cholesterol) and an online health risk assessment questionnaire. Information gathered from the questionnaire and screening was used by the plan's insurer to identify participants who had certain diseases, including: asthma, hypertension, diabetes, heart failure and kidney disease. If a participant was found to have one of the identified diseases, the person became eligible to participate in disease management coaching and to receive copay waivers for certain medications.
Broward County assessed a $20 charge every other week (through payroll) to employees who enrolled in the group health plan but refused to participate in the wellness program.
An employee filed a lawsuit suit alleging that the screening and questionnaire violated the ADA which prohibits employers from making disability-related inquiries and from requiring employees to undergo medical exams.
The ADA contains a safe-harbor that allows the establishment, sponsorship or administration of a bona fida benefit plan based on "underwriting risks, classifying risk or administering such risks that are based on or not inconsistent with state law." The Court of Appeals for the 11th Circuit found that the wellness program fit within this exemption which meant it did not have to comply with the ADA.
This ruling is welcome news for employers who can use the Broward County wellness program as a model for setting up their own wellness initiatives. While the case itself is precedent only in the 11th Circuit, other courts faced with similar facts may have similar results. Employers should still be mindful when establishing wellness programs because not only do they have to comply with the ADA, they also have to comply with the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA) and beginning in 2014, the Affordable Care Act.
