Washington and Lee third-year law student David Knoespel placed second in the 2012-13 writing competition for law students sponsored by the College of Labor and Employment Lawyers and the American Bar Association Section of Labor and Employment Law.
His paper is titled "Biometric Testing in Employer Wellness Programs and the Unanticipated Consequences of Healthcare Reform: Why Challenges Under the ADA Medical Examination Provision Reach the Merits After Seff v. Broward County." Knoespel's paper was one of 33 submissions evaluated by a distinguished panel of attorneys.
In the paper, Knoespel examines the rise of employer wellness initiatives, programs that seek to encourage healthy habits and identify chronic illness in order to help the employer control health care costs. Employees are often offered incentives to participate in these programs, and those programs and incentives are now regulated by the Affordable Care Act (ACA). The programs are also bound by the Americans with Disabilities Act (ADA), especially its medical examination provision.
Knoespel argues that is likely such incentive programs, regardless of whether they are voluntary or include a financial reward, are in violation of the ADA. But thus far the courts have extended to wellness programs the same kind of "safe harbor" protections that allows insurance companies to deny coverage based on pre-existing conditions.
The ACA includes several provisions that make the "health status underwriting" of this kind unlawful. Knoespel says this regulatory conflict will inevitably lead to discrimination claims by employees against employers who operate wellness programs, especially those that include biometric testing.
Knoespel's paper is available online at the College of Labor and Employment Lawyers website. At W&L Law, Knoespel serves as the editor in chief of the Journal of Civil Rights & Social Justice and works as a student attorney in the Black Lung Legal Clinic.