By The rising cost of health care has incentivized some employers to take a more proactive interest in the well-being of their employees. It is not at all unusual for employers to sponsor exercise or weight loss programs in an effort to support employees in developing healthy living habits. Other companies have instituted broader “wellness” programs to help stabilize health care expenses for chronic conditions, such as diabetes and high blood pressure. Although the goals of these programs may be to improve the overall health of the workforce, they also pose legal pitfalls for the unwary.
One potential pitfall is the Americans With Disabilities Act, which generally prohibits employers from requiring employees to undergo medical examinations or from making medical inquiries unless such investigations are job-related or a business necessity. 42 U.S.C. § 12112(a). As many “wellness” programs need information about an employee’s health status in order to direct them to the appropriate resources available under the program, employers have had to use surgical precision in developing effective programs that comply with the law. The Equal Employment Opportunity Commission (“EEOC”), charged with enforcement of the ADA in the workplace, complicated the picture further by issuing “informal” guidance stating that programs which include health questions or tests should be voluntary, meaning that the employer could neither require participation nor penalize employees who do not participate. EEOC Enforcement Guidance at n.78 (July 27, 2000).
A recent decision from the Eleventh Circuit – entitled Seff v. Broward County, Florida, Case No. 11-12217, 2012 U.S. App. LEXIS 17501 (11th Cir. Aug. 20, 2012) – gave a wellness program affiliated with Broward County a clean bill of health, despite the fact that for a six-month period employees who did not participate in the program incurred a $20 charge on each of their bi-weekly paychecks.
Broward County, Florida offered this wellness program as part of its 2009 open enrollment process. The wellness program was sponsored by the County’s group health insurer. The program included two components: (1) a health questionnaire; and (2) a “biometric screening” in which the employee was subjected to a finger stick test for glucose and cholesterol. Information gathered from the questionnaire and finger stick were used to identify County employees with asthma, hypertension, diabetes, congestive heart failure, or kidney disease. Those employees were then offered a disease management coaching program, which in turn could result in participants being offered appropriate medications at no additional cost. Participation in the wellness program was not a condition for enrollment in the County’s group health insurance plan. However, in 2010, to increase participation in the wellness program, the County imposed the $20 deduction. Id. at *2.
A former employee brought class action claims under the ADA, alleging that the wellness program violated the ADA’s prohibition on non-voluntary medical exams and health questions because the finger stick and questionnaire constituted the types of medical tests and health inquiries prohibited by the ADA. Id. at *3. The County filed a summary judgment motion, arguing that the wellness program fell within the “safe harbor” provisions of the ADA, which exempt certain insurance plans from the ADA’s general prohibitions on medical exams and health inquiries. Id. at *5 (citing 42 U.S.C. § 12201(c)(2)). More specifically, these safe harbor provisions state that the ADA “shall not be construed” as prohibiting a covered entity (in this instance, the employer) “from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan.” Id. (emphasis added). The District Court found that the wellness plan sponsored by Broward County’s group health insurer was within the safe harbor and granted summary judgment in favor of the County.
On appeal, Plaintiff raised only one challenge to the District Court’s decision; namely, that the District Court “improperly ignored the deposition testimony” of the County’s designated witness, who testified that the wellness program was not a “term” of the County’s benefit plan and was not “contained in Broward’s health and pharmacy plans.” Id. at *6. Notwithstanding this testimony, the Eleventh Circuit affirmed the District Court’s grant of summary judgment in favor of the County. Id. at *9. The Eleventh Circuit explained that, to the extent that the County’s designee’s testimony could be construed as amounting to a legal opinion or conclusion about the meaning of the word “term,” the witness had no authority to draw that conclusion because “the interpretation of a statute is a question of law for the court to decide.” Id. at *6-*7. Even if the designee’s testimony could be understood as “addressing an issue of fact regarding the contents of Broward’s plan documents,” Plaintiff’s challenge would still fail because Plaintiff identified no authority “suggesting that an employee wellness program must be explicitly identified in a benefit plan’s written documents to quality as a ‘term’ of the benefit plan” under the ADA’s safe harbor provisions. Id. at *8. The Eleventh Circuit concluded that “the district court did not err in finding as a matter of law that the employee wellness program was a ‘term’ of Broward’s group health insurance plan, such that the employee wellness program fell within the ADA’s safe harbor provision.” Id. at *8.