Labor & Employment Law — 10/13/09

EEOC letter discusses mandatory health risk assessments and ADA compliance

The Americans with Disabilities Act (ADA) prohibits employers from asking disability-related questions in a health risk assessment that employees are required to complete as a prerequisite to receiving monies from an employer-funded health reimbursement arrangement, according to an informal discussion letter released by the US Equal Employment Opportunity Commission (EEOC) on October 6, 2009.

In a letter dated August 10, 2009, Assistant Legal Counsel Peggy R. Mastroianni responded to an inquiry as to the lawfulness under the ADA of an employer’s mandatory health risk assessment that contained more than a hundred questions directed to several categories, including: family health history, self care, personal health, women’s health, older adult health, health choices-nutrition, health choices-physical activity, health choices-alcohol and tobacco, health choices-safety and health changes.

ADA prohibitions. Mastroianni noted that Title I of the ADA prohibits all disability-related inquiries before a job offer is extended. However, after a conditional offer is made, employers may ask disability-related questions and require medical exams provided it does so for all entering employees in the same job category.

After employment commences, an employer may make disability-related inquiries and require medical exams only when they are job-related and consistent with business necessity, Mastroianni advised. Disability-related inquiries and medical exams are also permissible when they follow up on a request for reasonable accommodation, or when the exam or other monitoring, is conducted under particular circumstances, such as periodic medical exams that are required of employees performing jobs that affect public safety, she instructed.

Lastly, disability-related inquiries and medical exams are permitted as part of a voluntary wellness program, Mastroianni emphasized. “A wellness program is voluntary if employees are neither required to participate nor penalized for non-participation,” she instructed.

Disability-related questions. Requiring employees to complete a health risk assessment that includes many disability-related questions, such as how often they feel depressed; whether they have ever been told they have asthma, cancer, heart disease, or diabetes; how many different prescription medications they currently take; or how much alcohol they consume — in order to obtain reimbursement for health expenses “does not appear to be job-related and consistent with business necessity,” wrote Mastroianni.

Moreover, because all employees in this case are required to complete a health risk assessment as prerequisite to eligibility for the health insurance program, it appears that the employer has no concerns that a particular employee will be unable to perform his/her job or will pose a direct threat because of a medical condition, Mastroianni observed. Nor does the employer appear to be obtaining medical information in response to a request for a reasonable accommodation, or because it is monitoring employees performing jobs that affect public safety, she wrote.

Involuntary program. “Finally, even if the health risk assessment could be considered part of a wellness program, it is not voluntary because it penalizes any employee who does not complete the questionnaire by making him or her ineligible to receive reimbursement for health expenses,” wrote the EEOC attorney.

For all of these reasons, Mastroianni concluded that the ADA prohibits the employer from making disability-related inquiries or requiring medical exams under the circumstances described.

Other questions. However, Mastroianni pointed out that many of the inquiries on the employer’s health risk assessment are not disability-related. For example, “self care” questions, such as whether an employee sees a personal doctor for routine care or has a health care directive; “health choices” questions, such as how many servings of vegetables or fruit an employee eats, whether s/he takes a vitamin or eats breakfast; and “health choices” questions, such as how much an employee exercises, are not likely to elicit information about a disability, and thus, are not subject to the ADA’s restrictions.

The EEOC’s letter concerning mandatory health assessments is an informal discussion of the issue. It is not an official opinion of the Commission. A copy of the letter is posted on the federal agency’s website at http://www.eeoc.gov/foia/letters/2009/ada_health_risk_assessment.html.

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