Many plan sponsors are unaware of the "safe harbor" provisions of the Americans with Disabilities Act as it relates to health insurance. Basically it provides that certain insurance plans are exempt from the ADA restrictions related to screenings, medical examinations and making inquiries of employees related to their health status. Health plans are allowed to collect information related to health conditions for the purpose of underwriting or clarifying risks, or for plan administration purposes.
In late 2011, the Southern District of Florida ruled, in a case called Seff v. Broward, that wellness plans fall within the ADA safe harbor. At issue in the case was that a county sponsored wellness program consisted of biometric screening and a health risk assessment. This information was collected and used to identify certain part high-risk conditions and then those participants were eligible to participate in disease management programs and waivers of co-pays for medication. Employees who refused to participate in the wellness program were charged $20, and Seff sued because of the charge. His claim was that the screening process violated the ADA.
The 11th Circuit affirmed the District Court's decision in favor of the county and further clarified that the wellness program was a "term" of the group health plan and was thus integrated into the health plan to be covered by the safe harbor. Even though the plan document did not expressly reference the wellness program, the Court reasoned that since it was only available to health plan enrollees and was sponsored by the same insurer that provided the group coverage, it was part of the health plan.
Though the EEOC has not commented on this decision and has not issued formal guidance on wellness plans and ADA compliance, the Court's decision seems to continue to confirm that an integrated wellness program, even as an undefined "term" gets the same safe harbor protection as a health plan. However, plan sponsors should be cautioned that making appropriate references to the wellness program in plan documentation will certainly go a long way toward bolstering that position. If you have concerns or questions about the adequacy of your plan documentation, your attorney at Fox Rothschild is available to assist.