Last year, we discussed a class action case relating to an employer offering financial incentives for participating in a group wellness program. The case, Bradley Seff v. Broward County, addressed 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.
In April, 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.
The case was recently reviewed by the 11th Circuit Court of Appeals (whose jurisdiction presides over federal cases originating in Alabama, Florida and Georgia). This Court affirmed the District Court’s position stating that the County’s wellness program fell within the ADA’s safe harbor provision which provides for an exemption of certain plans with regard to required medical exams and disability-related inquiries.
The takeaway from this is that, at least in the 11th Circuit, an outcome-based wellness program that wants to avoid ADA scrutiny should be made a part of a bona fide health program. This being said, though, the 11th Circuit is not binding on other Circuits, nor is it binding on the Equal Employment Opportunity Commission which, thus far, has not taken a firm position on what constitutes the voluntary collection of medical information. For ADA compliance purposes, it is very important that any collection of medical information from an employee be voluntary.
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