Wednesday, March 27, 2013

Mandatory Employee Medical Exams

Inside Counsel reports that CVS plans to penalize employees who refuse to undergo medical exams. Is this legal? Probably. Although it certainly raises some privacy concerns, and there are definitely some legal landmines in the arena. Thompson Reuters addresses some of those legal concerns here.

One of the cases mentioned in both articles is Seff v. Broward County, Fla., from the 11th Circuit. The County offered a group health care plan, and participating employees were eligible for a wellness program. The wellness program screened for certain diseases and provided co-pay waivers and disease management coaching for employees with certain illnesses. Employees who participated in the health care plan but did not participate in the wellness program were charged an additional $20.

An employee filed a lawsuit claiming that the plan violated the ADA's prohibition on mandatory medical examinations and disability-related inquiries. However, the ADA has a safe harbor provision that states:
[T]he ADA "shall not be construed" as prohibiting a covered entity "from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law." 42 U.S.C. § 12201(c)(2).
The employer won on summary judgment, affirmed by the 11th Circuit, holding "the ADA’s safe harbor provision for insurance plans exempted the employee wellness program from any potentially relevant ADA prohibitions."

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