The federal district court for the Southern District of Florida ruled that a wellness program requiring employees to complete a health risk assessment and a finger-stick blood test or pay a $20-per-pay period penalty was permissible under the Americans with Disabilities Act (ADA). Seff v. Broward County, No 10 cv 61437 (S.D. Fla. Apr. 11, 2011). As background, the ADA generally prohibits employee medical examinations or inquiries that are not job-related and consistent with business necessity. Exceptions to this prohibition exist for "voluntary wellness programs" and "bona fide benefit plans" that are based on underwriting risks, clarifying risks or administering risks.
The district court found that the wellness program administered and paid for by Broward County's insurer was a term of the County's health plan. The court then held that the wellness program satisfied the safe harbor provision for bona fide benefit programs because the program was designed to develop and administer present and future benefit plans using accepted principles of risk assessment.
Reinhart Comment: Because the district court relied on the ADA exception for bona fide benefit plans, it avoided reviewing whether the wellness program would be considered "voluntary" under the ADA. The Equal Employment Opportunity Commission (EEOC) has questioned whether a wellness program that imposes a penalty for failing to participate would be truly "voluntary" and it remains to be seen whether the EEOC or other courts will find the rationale in Seff persuasive for upholding other wellness programs with penalties for nonparticipation.