[authors: Clifford J. Schoner, Brian M. Pinheiro]
The U.S. Court of Appeals for the 11th Circuit has upheld a federal district court ruling that a wellness program instituted by Broward County, Florida, does not violate the general prohibition under the Americans with Disabilities Act against non-voluntary medical examinations and inquiries that are not job-related.
In Seff v. Broward County Florida, the court determined that the wellness program qualified for an ADA safe harbor that applies to a bona fide employee benefit arrangement, the terms of which are based on underwriting risks, classifying risks, or administering risks as long as the arrangement is not a subterfuge to evade ADA requirements.
The Broward County wellness program featured a health risk assessment and certain biometric screenings. It was available to employees participating in the County's health and pharmacy benefit programs and administered by the health insurer of these programs. County employees who failed to complete the health risk assessment or submit to the biometric screenings were required to pay an additional $20 per paycheck for coverage under the County's health and pharmacy benefit programs. The County communicated the terms of its wellness program to employees in at least two handouts.
The Equal Employment Opportunity Commission, which enforces the ADA, did not participate in this case. At least unofficially, the EEOC has addressed the permissibility of wellness programs under the ADA in the context of another exception for "voluntary" wellness programs. In enforcement guidance published in 2000, the EEOC took the position that "[a] wellness program is 'voluntary' as long as an employer neither requires participation nor penalizes employees who do not participate." The 11th Circuit's decision suggests that at least in some circumstances, a "non-voluntary" wellness program can be offered without running afoul of the ADA.
Employers should keep in mind that wellness programs need to comply not only with the ADA, but with requirements set forth in the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA), and, beginning in 2014, the Patient Protection and Affordable Care Act (PPACA).
If you have any questions about wellness programs and ADA, HIPAA, GINA, and PPACA compliance, please contact Brian M. Pinheiro at 215.864.8511 or firstname.lastname@example.org, Clifford J. Schoner at 215.864.8626 or email@example.com, or the Ballard Spahr attorney with whom you work.