The Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, ruled on Monday that Broward County’s wellness program, which required employees to undergo a biometric screening and fill out a health assessment questionnaire, did not violate the Americans with Disabilities Act (“ADA”). The ADA generally prohibits medical examinations and disability-related inquiries unless job-related and consistent with a business necessity. However, the ADA has a safe harbor provision stating that the statute “shall not be construed” as prohibiting employers “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.”
Broward County employee Bradley Seff filed a class action lawsuit alleging that the County’s wellness program violated the ADA. From the information gathered from the screening and questionnaire, employees identified as having asthma, hypertension, diabetes, congestive heart failure or kidney disease were given the opportunity to participate in a disease management coaching program and become eligible to receive co-pay waivers for certain medications. An employee who did not participate in the wellness program, like Seff, incurred a $20 charge biweekly. The trial court granted summary judgment for the County finding that the wellness program fell under the safe harbor because it was a “term” of the group health plan.
Seff appealed, pointing to the deposition testimony of the County’s acting benefits manager, Lisa Morrison, who said that the wellness program was not a “term” of the County’s benefit plan nor was it a “term” contained in the County’s health or pharmacy plans. The appeals court said that Morrison’s testimony could be interpreted in two ways but that neither interpretation raised a triable issue of fact. Morrison could have been stating her opinion that the wellness program was not a benefit plan term within the meaning of the safe harbor provision, which would have been a conclusion of law, and subject to evaluation by the court, not a jury. Or Morrison’s testmony could be understood to mean that the physicial documents comprising the group health plan did not include a written term providing for the wellness program. This, too, would not have raised a triable issue of fact absent authority suggesting that a wellness program “must be explicitly identified” in the benefit plan’s written documents to qualify as a “term” under the ADA’s safe harbor provision. Rather, the appeals court said that the record established that the wellness program was indeed a part of a health insurance contract to provide Broward County with a group health plan and, therefore, was a “term” of County’s group health insurance plan. Further, the County had presented the program as part of its benefit plan in at least two employee handouts.
