A federal district court in Florida has ruled that a wellness program instituted by Broward County did not violate the Americans with Disabilities Act. The program required employees to pay an additional $20 per paycheck for group health plan coverage if they failed to complete a health risk assessment and submit to certain biometric screenings.
Certain employees sued, claiming that the program violated the ADA’s general prohibition against medical examinations and inquiries that are not job-related. The court found that the program qualified for an ADA safe harbor that applies to bona fide employee benefit arrangements that are based on underwriting risks, classifying risks, or administering risks as long as the arrangement is not a subterfuge to evade ADA requirements.
The Equal Employment Opportunity Commission, which interprets and enforces the ADA, declined to participate in the Broward County case, and it remains to be seen how the EEOC might respond to the decision. In the event of future litigation on this issue, we would expect the court’s reliance on the bona fide plan safe harbor to be challenged, particularly for a wellness program that is structured differently from the relatively simple Broward County arrangement.
Unfortunately, the court in the Broward County case declined to determine if the County’s wellness program satisfied an alternate ADA safe harbor for “voluntary” wellness programs, prolonging speculation about when a penalty or incentive might cause a wellness program to lose its voluntary status. 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.”
In implementing or modifying wellness programs, employers will 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). However, the relatively sparse and unclear guidance under the ADA continues to provide the greatest source of uncertainty for these programs.