An employer's wellness program—despite certain "penalty" provisions—was recently held not discriminatory under the Americans with Disabilities Act ("ADA") by the U.S. Court of Appeals for the Eleventh Circuit in Seff v. Broward County. The Eleventh Circuit found that the wellness program sponsored by Broward County, Florida ("County"), was established as a term of the County's insured group health plan and, as such, fell under the ADA's bona fide benefit plan "safe harbor" provision. This ruling is welcome news for employers with or considering wellness programs.

However, if the County's wellness program had not been found to be a part of the County's health benefits plan, then potential plaintiffs or the Equal Employment Opportunity Commission ("EEOC") might try to argue that the wellness program would run afoul of the EEOC's views on "voluntariness" requirements for employer-sponsored wellness programs.

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