Hunton Employment & Labor Perspectives

On August 20, 2012, the Eleventh Circuit Court of Appeals affirmed the ruling of the U.S. District Court for the Southern District of Florida in Seff v. Broward County, finding that premium surcharge imposed under Broward County’s employee wellness program did not violate the American with Disabilities Act (ADA) because it was part of a bona fide benefit plan.

The District Court decision in Seff was discussed in a previous post on July 26, 2012.  On appeals, the Eleventh Circuit rejected the plaintiff’s claim that Broward County’s wellness program did not qualify as a “term” of a bona fide benefit plan exempt under ADA Section 12201(c)(3).  In this regard, it noted that the program (i) was part of a contract with Coventry Healthcare to provide Broward County’s employees with a group health plan, (ii) was only available to group plan enrollees and (iii) was otherwise communicated to be a part of the County’s group health plan in employee materials.  As a result, the Circuit Court concluded that the employee wellness program was part of the County’s group health plan and, therefore, permissible under the ADA. 

This is the first appeals court decision addressing ADA’s application to wellness programs offered under an employer-sponsored health program.  While the decision is only binding in the Eleventh Circuit, it provides helpful precedent for employers maintaining mandatory wellness programs elsewhere.  Unfortunately, the EEOC has yet to publish guidance on the application of the bona fide benefit program exception to wellness programs (and has not signaled that it plans to do so anytime soon)  So, those hoping for more certainty in this area will need to wait.