Wagner Header

The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 19 attorneys engaged exclusively in employee benefits, estate planning and employment law. Five of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7121 Fairway Drive
Suite 203
Palm Beach Gardens, FL 33418


New York Office

Tel: (716) 650-5987

Fax: (716) 633-0301

333 International Drive

Suite B-4

Williamsville, NY 14221


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 829-4385

315 Montgomery Street

Suite 902

San Francisco, CA 94104







August 30, 2012 

 State and Federal Law Alert




Eleventh Circuit Determines Whether Wellness Program Complies with ADA Requirements 




The U.S. Court of Appeals for the Eleventh Circuit has ruled that a wellness program feature-a $20 health insurance premium surcharge for failing to complete a health risk assessment-did not violate the Americans with Disabilities Act of 1990 (the "ADA"). In Seff v. Broward County, Florida, the Eleventh Circuit held that "bona fide benefit plans," such as Broward County's wellness program, are exempt from certain ADA prohibitions.


The ADA generally prohibits employment discrimination against disabled individuals and limits the circumstances under which an employer may require employees to undergo medical examinations or provide answers to inquiries about medical conditions. While voluntary medical exams and inquiries may be part of an employer sponsored wellness program if the information obtained is kept confidential and not used to discriminate, little guidance exists on what "voluntary" means for ADA purposes.


In 2009, Broward County began offering a wellness program, which consisted of a biometric screening and a health risk assessment, to employees who participated in its group health plan. Employees were not required to participate in the wellness program to be eligible for coverage in the group health plan. However, employees who did not participate in the wellness program were assessed a $20 health insurance premium surcharge each pay period.


Broward County employees subsequently filed a class action lawsuit in federal district court, alleging that the wellness program violated the ADA's prohibitions on involuntary medical examinations and disability related inquiries. The district court ruled in Broward County's favor, finding that the wellness program was a "term" of a bona fide benefit plan, and, therefore, did not violate the ADA.


Certain safe harbors contained in the ADA exempt bona fide benefit plans from otherwise applicable restrictions. Under such safe harbors, employers are permitted to create a plan that is "bona fide" based on underwriting, classification, or administration of risks that are not subterfuge for discrimination.


The district court found that Broward County's wellness program fit within the ADA's safe harbor for bona fide group health plans because it: (i) was part of a group health plan, and (ii) had the objective of enhancing overall cost-effectiveness. Therefore, court concluded that Broward County's wellness program was exempt from the ADA restrictions.


On appeal, the Eleventh Circuit was asked to consider whether Broward County's wellness program failed to be a bona fide plan because it was not a "term" ( i.e., clearly part of) the plan document. In the district court proceedings, Broward County's benefits manager had testified that the wellness program was not expressly provided for in the relevant benefit plan. Thus, the employees argued that because the wellness program was not expressly identified in the benefit plan's written document, it did not satisfy the ADA safe harbor.


The Eleventh Circuit said there was no specific authority requiring a wellness program to be expressly identified in the benefit plan's written documents. Moreover, the Eleventh Circuit noted that the wellness program was: (i) only available to individuals who enrolled in the group health plan, and (ii) presented as part of the group health plan in employee communications. Accordingly, the Eleventh Circuit affirmed the district court's ruling, concluding that the wellness program was a "term" of Broward County's group health plan, and therefore within the ADA safe harbor for bona benefit fide plans.


While the Seff decision is a positive outcome for employers, it creates precedent for courts only within the Eleventh Circuit's jurisdiction (i.e., Florida, Georgia and Alabama) and does not bind courts outside the Circuit. Moreover, the Equal Employment Opportunity Commission-the regulatory agency tasked with enforcing the ADA- has yet to issue formal guidance to address permissible wellness program designs. Thus, many employers who sponsor wellness programs are still in an unpredictable regulatory environment.


Employers must be cognizant that their wellness programs are also required to comply with other applicable laws, including the Patient Protection and Affordable Care Act of 2010, Health Insurance Portability and Accountability Act of 1996, the Genetic Information Nondiscrimination Act of 2008, and relevant state laws. Because these compliance determinations are extremely fact-specific, employers should consult with qualified legal counsel before implementing wellness program designs.




This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any advice set forth herein with respect to US federal tax issues is not intended or written by The Wagner Law Group to be used and cannot be used, by you or any taxpayer, for the purpose of avoiding penalties that may be imposed on you or any other person under the Internal Revenue Code.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.