Surprisingly, an employer’s wellness program that penalized employees $20 per paycheck if they did not submit to a health questionnaire and biometric screening was not in violation of the federal Americans with Disabilities Act (ADA), according to a recent decision by a federal district court in Florida (Seff v. Broward County, SD Fla, Apr. 2011).
The employer, concerned about its aging workforce and rising health insurance costs, implemented a wellness program to improve the overall health of its workforce. Employees were asked to complete a health questionnaire and submit to biometric screening. Those who were found to have certain chronic conditions were given the opportunity to participate in disease management programs. Employees who refused to participate in the wellness program were subject to a $20 per paycheck penalty. This program was administered and paid for by the employer’s health insurer, but participation was not required for coverage under the insurance plan. Employees sued, claiming this program violated the ADA by requiring employees to undergo medical exams and making medical inquiries that were not job-related.
The court found that the program was permitted under a “safe harbor” provision of the ADA intended to protect benefit plans. A wellness program that requires medical exams or inquiries that would otherwise be prohibited under the ADA is permitted if the program is part of a benefit plan and is conducted for the purpose of classifying and administering risks under the benefit plan. Because the program was paid for and administered by the insurer, because only those enrolled in the insurance plan could participate, and because the motivation behind the program was to help the employer and insurer identify and classify risks under the benefit plan, the wellness program was permitted under the ADA’s insurance “safe harbor”.
Tips: This decision suggests that an employer might be better protected against an ADA claim involving its wellness program the more closely the program is tied to the employer’s health plan; however, these situations tend to be very fact specific, and depending on the facts involved, a case like this could easily have gone the other way. If you have concerns about the legal risks associated with your wellness program, contact Vigilant for a risk analysis. Also, see our Legal Guide, “Workplace Wellness Programs” (4417).