Just like many employers, Broward County, FL adopted a wellness program designed to encourage its employees to participate in certain health screenings. One concern all employers have concerning these programs is whether the ADA’s prohibition on non-voluntary medical examinations and disability-related inquiries makes these programs unlawful. The Eleventh Circuit, in Seff v. Broward County, FL, found that not to be the case here, applying a separate "safe harbor" provision of the ADA. 

This case is an important victory for employers with workplace wellness programs, but it by no means settles all of the potential legal risks these programs face. Employers with wellness programs, particularly for those programs that are more robust in terms of the incentives they provide and the requirements employees have to meet to achieve those incentives, will continue to have to monitor other courts' application of the ADA, as well as HIPAA, GINA, and other federal and state laws that affect wellness program design and administration.

Under the County's program, a typical design adopted by many employers, employees receive $20 for participating in a “finger stick for glucose and cholesterol,” and an online Health Risk Assessment questionnaire which are used to identify Broward employees who had one of five disease states: asthma, hypertension, diabetes, congestive heart failure, or kidney disease. Employees suffering from any of the these would be able to take part in disease management programs.

A former employee sued claiming the assessment questionnaire violated the ADA’s prohibition on non-voluntary medical examinations and disability-related inquiries. The 11th Circuit rejected this argument, and agreed with the lower court's decision that ADA’s safe harbor provision for insurance plans exempted the employee wellness program from any potentially relevant ADA prohibitions. That safe harbor states that the ADA “shall not be construed” as prohibiting a covered entity

from establishing, sponsoring, observing or administering 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.

In an attempt to create a question of fact, the employee raised testimony in the case concerning whether the wellness program was part of the bona fide health plan. The Court did not agree and noted that it was not "aware of any authority suggesting that an employee wellness program must be explicitly identified in a benefit plan’s written documents to qualify as a “term” of the benefit plan within the meaning of the ADA’s safe harbor provision." Instead, the Court was satisfied that the wellness program was as part of the contract to provide Broward with a group health plan, the program was only available to group plan enrollees, and Broward presented the program as part of its group plan in at least two employee handouts.

The Court may have taken this position because Broward is a governmental plan, not subject to ERISA. However, we recommend that employers with similar designs include descriptions of their wellness programs in their group health plan documents.