EEOC Says Employers Cannot Require Participation In Health Risk Assessment

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May 18, 2009

In a recent informal opinion letter, the Equal Employment Opportunity Commission (“EEOC”) held that an employer violated the Americans with Disabilities Act (“ADA”) when it required employees to undertake a health risk assessment (“HRA”) as a condition of participating in the employer s group health plan.
Facts: The employer had implemented an HRA which included answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Employees declining to participate in the program (and members of their families) were ineligible for coverage under the employer s self-funded health plan. Specific information from the HRA went only to the employee, and the employer only received aggregated information.
EEOC Response: The EEOC’s response reiterated that once employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. This means the employer must have a “reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition” or (3) an employee has made a “request for reasonable accommodation when the disability or need for accommodation is not known or obvious.” The EEOC determined that requiring all employees to take this HRA that includes disability-related inquiries and medical examinations as a prerequisite for obtaining group health coverage does not appear to be job-related and consistent with business necessity, and therefore it would violate the ADA. The EEOC noted that disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program. A wellness program is considered voluntary only if employees are not required to participate and are not penalized for non-participation. With regard to the HRA, an employee’s decision not to participate resulted in the loss of the opportunity to obtain health coverage through the employer’s plan. Thus, even if the HRA could be considered part of such a wellness program, the program would not be voluntary because individuals who do not participate in the assessment are denied a benefit (i.e., they are penalized for non-participation). While this informal opinion by the EEOC does not create binding law, employers should be cognizant of the positions taken by the EEOC in such letters. If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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