May 12, 2011

Update: Wellness Program – ADA Class Action Case

In the April Benefit Beat, a class action lawsuit (Bradley Seff v. Broward County) was mentioned relating to an employer offering financial incentives for participating in a group wellness program.  This case addresses the applicability of the Americans with Disabilities Act (ADA) to wellness programs.  Specifically, a group of employees challenged the employer’s imposition of a wellness program that requires completion of a health risk assessment (HRA).  Failure to complete the HRA would result in a financial penalty.  The complainant alleged that this was a violation of the ADA because it impermissibly requested medical information.  Generally, the ADA permits the collection of medical information as long as it is voluntary.  The “voluntary” nature of the medical information collection was in question. 

On April 11, 2011, the U.S. District Court of Southern Florida dismissed the challenge, based on a provision of the ADA that says, as long as the collection of medical information is accomplished by a bona fide health plan, and as long as it is not a subterfuge, or a way to avoid the protections of the ADA, then the collection of medical information is permissible. 

This decision by the Florida Court is certainly helpful to employers wanting to use HRAs, and specifically, financial sticks to encourage participation in wellness programs.  However, it is important to remember that this decision is not binding on the Equal Employment Opportunity Commission (EEOC) who, thus far, has informally raised some concern about these kinds of programs.  Of particular note, the Broward County Court does not address the question of what constitutes “voluntary” collection of medical information.  This question appears to be of paramount importance to the EEOC.

Certainly, employers can proceed with their wellness strategies and with the use of health risk assessments; but, they should be cognizant of future developments.  Based on this Court decision, the employer should make certain that it is, in fact, the health plan that is engaged in the collection and use of the medical information.


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