In Seff v. Broward County, Florida, No 11-12217 (11th Cir. 2012), the plaintiff, Bradley Seff ("Seff"), filed a class action lawsuit, alleging that the defendant, Broward County ("Broward"), had established an employee wellness program (the "Program") which violated the Americans with Disabilities Act of 1990 (the "ADA"). The district court granted Broward's motion for summary judgment, finding that the Program fell within the ADA's safe harbor provision for insurance plans. Seff appealed. The Eleventh Circuit Court of Appeals (the "Court") affirmed the district court's judgment.
In this case, the Program was sponsored by Broward's group health insurer,
Coventry Healthcare ("Coventry"). The Program consisted of two components: a biometric screening, which entailed a "finger stick for glucose and cholesterol," and an "online Health Risk Assessment questionnaire." Coventry used information gathered from the screening and questionnaire to identify Broward employees who had one of five diseases: asthma, hypertension, diabetes,congestive heart failure, or kidney disease. Employees suffering from any of these diseases received the opportunity to participate in a disease management coaching program, after which they became eligible to receive co-pay waivers for certain medications. Participation in the Program was not a condition for
enrollment in Broward's group health plan. To increase participation in the
Program, however, Broward imposed a $20 charge on each biweekly paycheck issued to employees who enrolled in the group health plan but refused to participate in the Program. Seff alleged that the Program violated the ADA's prohibition on non-voluntary medical examinations and disability-related inquiries.
In analyzing the case, the Court noted that, under the ADA, a covered entity (like Broward) is prohibited from requiring a medical examination and inquiring of an employee as to whether he or she has a disability or the nature or severity of the
disability, unless the examination or inquiry is job-related and consistent with business necessity (see 42 U.S.C. § 12112(d)(4)(A)). The Court further noted that the ADA contains a safe harbor provision that exempts certain insurance plans from the ADA's general prohibitions, including the prohibition on required medical examinations and disability-related inquiries (see 42 U.S.C.§ 12201(c)(2)). The safe harbor provision states that the ADA shall not be construed as prohibiting a covered entity 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. The Court found that the Program qualified for the safe harbor, since the Program qualified as a term of a bona fide benefit plan,
within the meaning of the safe harbor, as it constituted a term of Broward's group health plan.