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One vexing aspect of wellness program planning is the murky relationship between health risk assessments and employee privacy rights.
Recent federal cases have added little clarity to the issue.
Last year, a federal judge in the U.S. District Court of Southern Florida dismissed former Broward County, Fla., employee Bradley Seff's lawsuit alleging the county illegally penalized workers who did not undergo a health risk assessment and provide a blood sample to determine glucose and cholesterol levels. The court ruled the penalty was permissible under an exemption in the Americans with Disabilities Act for administering “bona fide benefit plans” based on underwriting risks.
A suit filed in 2006 in a U.S. District Court of Eastern Michigan court resulted in a much different ruling. That court declared a fire department's mandatory blood test to determine cholesterol levels as part of its wellness program was illegal, citing unlawful search provisions of the Fourth Amendment.
Neither decision, experts noted, directly addressed voluntary submission to a health risk assessment, leaving employers and compliance to speculate how far the ADA rules extend to cover wellness programs.
“I think there's going to be some more latitude given to employers who are implementing a wellness program,” said Mike Demman, CEO of Omaha, Neb.-based SimplyWell L.L.C. “Still, it's amazing to think that 10 years ago, we weren't talking about these laws and how they come into play with wellness programs at all.”
Most recently, five employees of the Oregon Department of Corrections and Oregon State Police filed suit Feb. 14 in federal court in Eugene, Ore. In similar fashion to Mr. Seff's claim against Broward County, the Oregon workers allege 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.
By charging a fee, the employees allege the state's wellness program effectively compels them to disclose private medical information. They are seeking class action status for the case, alleging 1,000 state employees were similarly affected by the program. A June 14 deadline has been set for discovery in the case.
As employers intensify their focus on wellness as a means of reducing health care costs, lawsuits filed by workers, regulators and unions are becoming more common, wellness compliance experts say.