On August 20, 2012, the US Court of Appeals for the Eleventh Circuit issued an opinion in Seff v. Broward County. The key issue was whether Broward County's wellness program violated the ADA's prohibition on non-voluntary medical examinations and disability-related inquiries.

Broward County offered its employees a group health insurance plan. In 2009, employees enrolling in the group plan became eligible to participate in a new wellness program sponsored by Broward County's group health insurer. The wellness program consisted of:

Broward County's insurer used information gathered from the screening and questionnaire to identify employees who had asthma, hypertension, diabetes, congestive heart failure or kidney disease. Employees suffering from any of these five "disease states" were eligible to:

Participation in the wellness program was not a condition for enrollment in Broward County's group health plan. However, beginning in April 2010, Broward County imposed a $20 charge on paychecks issued every other week to employees who enrolled in the group health insurance plan but refused to participate in the wellness program. Broward County suspended the charges on January 1, 2011.

Seff, a former Broward County employee who incurred the $20 charges on his paychecks, filed this class action alleging that the wellness program's biometric screening and questionnaire violated the ADA, which generally prohibits covered entities from:

However, the ADA contains a safe harbor provision under which certain insurance plans are exempt from the ADA's general prohibitions. Under the safe harbor, the ADA is not construed to prohibit covered entities "from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan" based on "underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with [s]tate law." The district court ruled in Broward County's favor, finding that the wellness program fell within the ADA's safe harbor, which exempted the wellness program from any potentially relevant ADA prohibitions.

The Eleventh Circuit affirmed the district court's ruling and concluded that the wellness program:

The court rejected an argument that a wellness program must be expressly identified in a benefit plan's written documents to qualify as a "term" of the benefit plan for purposes of the ADA safe harbor. The court reasoned that:

Although the Broward County decision is binding on courts in the Eleventh Circuit, it remains to be seen whether courts in other jurisdictions will follow the Eleventh Circuit's analysis on similar facts. Since the Broward County district court decision, the EEOC (which administers the ADA) has not yet weighed in with formal guidance addressing permissible wellness program designs under the ADA. As a result, sponsors of wellness programs continue to operate these programs in an uncertain regulatory environment. For a discussion of wellness programs and design considerations involving these programs, see Practice Note, Wellness Programs.