Court Holds Wellness Program Does Not Violate ADA

The Applicable Law. The ADA, which is enforced by the Equal Employment Opportunity Commission (EEOC), prohibits employers and other covered entities from requiring a medical examination, asking an employee whether he or she is disabled or inquiring about the nature or severity of any disability unless there is a business necessity for the exam or inquiry, and it is job related. There is an exception to this business necessity rule for certain voluntary arrangements, which the EEOC enforcement manual says includes a wellness program in which participation is optional, and the employer does not penalize employees who refuse to participate in it. The EEOC staff has informally questioned whether providing a financial incentive, such as a premium discount for participation in a wellness program, may cause a wellness plan to be involuntary under this standard.

Another exception to the general business necessity rule for medical exams and inquiries provides that the ADA is not to be interpreted to prohibit a covered entity from “establishing … 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.” This exception is generally referred to as the insurance safe harbor.

The Broward County Program. In 2009, Broward County, Florida, implemented a wellness program under which employees would complete a confidential online health risk assessment and have a confidential blood test for glucose and cholesterol levels. These two tools were used to determine their propensity for one of five diseases, such as diabetes or hypertension, and employees who were at risk had the opportunity to enroll in disease management programs. The employees were not required to participate in the wellness program to enroll in the County’s health plan; however, beginning in 2010, employees who declined to participate in the program were charged $20 per biweekly pay period.