Penalty for Not Completing Health Risk Assessment Does Not Violate ADA: Court

Officials in Broward County, Florida, did not violate the Americans with Disabilities Act by charging employees a penalty for failing to complete a health risk assessment, a federal appeals court has ruled.

Broward County began offering an employee wellness program in 2009 through its group health insurer, Coventry Health Care Inc. To boost program participation in the program, the county required all employees to take a health risk assessment and provide a blood sample to determine glucose and cholesterol levels. Employees who did not complete the testing were charged $20 per paycheck, according to court documents.

Former employee Bradley Seff sued the county in 2010, alleging that the penalty amounted to an end-run around the ADA’s prohibition of compulsory medical examinations and disability-related inquiries.

In a unanimous ruling last week, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta upheld a lower court’s ruling in the county’s favor, which declared the penalty as protected under “safe harbor” provisions of the ADA that allow employers some flexibility in matters relating to risk-based benefit plans, such as group health care.

“The record establishes that Coventry Healthcare sponsored the employee wellness program as part of the contract to provide Broward with a group health plan, the program was only available to group plan enrollee, and Broward presented the program as part of its group plan in at least two employee handouts,” Judge Susan Black wrote in the court’s ruling. “In light of these facts, 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.”

An attorney representing Seff said no appeal is planned.

In a similar lawsuit filed February 14 in Eugene, Oregon, federal court, five employees of the Oregon Department of Corrections and State Police allege that a state-sponsored wellness program illegally assesses a penalty for refusing to submit to a health risk assessment. Employees who opted not to participate in the program were assessed a $20 to $35 monthly fee. That case has not yet proceeded to trial.

Matt Dunning writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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