New Class Action Wave Against Wellness Programs?

This week, the U.S. District Court of the Southern District of Florida certified a plaintiff class in a case involving an employer’s wellness program. In Bradley Seff v. Broward County, the County of Broward, Florida ("Broward") was sued by an employee seeking declaratory, injunctive and equitable relief, compensatory damages, costs and attorney’s fees, claiming that Broward’s wellness program violates the ADA’s prohibition against compulsory medical examinations and disability-related inquiries (42 U.S.C. §12112). Broward’s wellness program includes a biometric screening (finger stick for glucose and cholesterol) and online Health Risk Assessment (HRA). Employees who enroll in Broward’s group health plan and choose not to participate in the wellness program pay an additional $20 per paycheck toward their health coverage.

Broward asserts that its wellness program is voluntary and further is permitted under the ADA’s benefit plan safe harbor provision ( 42 U.S.C. §12201(c)(1)-(13) and 29 C.F.R. §1630.16(f)), which exempts from the ADA activities related to the administration of a bona fide employee benefit plan that is subject to ERISA, or complies with State law and is based on underwriting, classifying and administering risks, unless the plan is a "subterfuge" to evade the purposes of the ADA. This case bears watching as it may provide a test of the extent of the ADA benefit plan exemption as applied to wellness programs.

The court’s class certification permits the case to proceed as an action on behalf of a class consisting of all current and former Broward employees who participated in the Broward group health plan, declined participation in the wellness program, and had $20 in additional premiums deducted from each paycheck.

Russell D. Chapman authored this entry.