The American with Disabilities Act (ADA) generally prohibits employers from asking disability-related questions to employees or applicants or requiring them to submit to a medical examination, unless the examination or questions are “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The statute’s limits on disability-related inquiries can create difficulties for employers wishing to implement a wellness program for the benefit of their employees.
In Seff v. Broward County, Florida, No. 11-12217 (11th Cir. Aug. 20, 2012), the Eleventh Circuit Court of Appeals recently provided some guidance for employers and insurers on implementation of an employer-sponsored wellness program. The appellate court held that the ADA’s safe harbor provision exempting certain health insurance plans from the statute’s prohibitions against disability-related inquiries covered Broward County’s employer-sponsored wellness program.
Bradley Seff, a Broward County employee, brought a class action suit against the County alleging that its wellness program violated the ADA. The County offered the wellness program to employees enrolled in its group health insurance plan sponsored by Coventry Healthcare. Participating employees submitted to a biometric screening done through a “finger stick” for glucose and cholesterol and responded to an online health risk assessment questionnaire. Coventry used the information to determine whether employees suffered from certain disease states – such as asthma, hypertension, and diabetes – and offered those employees the chance to participate in a disease management program and to receive co-pay waivers for certain medications. While participation in the wellness program was voluntary, in April 2010 the County started charging $20 per paycheck for employees enrolled in the group plan, but not participating in the wellness program. The $20 charges were stopped nine months later.
In his lawsuit, Seff alleged that the wellness program’s biometric screening and health questionnaire violated the ADA’s prohibition on non-voluntary disability-related inquiries. The district court granted summary judgment in favor of the County, holding that the wellness program fell within the ADA’s safe harbor for health insurance plans and, therefore, was exempt from the statute’s proscriptions against medical inquiries or examinations.
On appeal, the Eleventh Circuit agreed. The ADA’s safe harbor provision allows employers to establish, sponsor, or administer “the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.” 42 U.S.C. § 12201(c)(2). The court found that the County’s wellness program was a “bona fide benefit plan” within the meaning of the safe harbor provision because it was a “term” of the group health plan. According to the court, evidence that the employee wellness program was part of Coventry’s contract with the County to provide group health insurance, the program was available only to employees enrolled in the plan, and the County presented the program as part of its group health plan in handouts, established that the wellness program was a “term” of the County group plan. As such, the program fell within the safe harbor for insurance plans and did not violate the ADA.