EEOC Suggests Requiring Risk Assessment For Health Insurance Eligibility Violates ADA

By Sally Piefer

In an unofficial advisory letter, the EEOC recently opinioned that an employer who required employees to participate in a clinical health risk assessment to be eligible for its health plan likely violates the Americans with Disabilities Act .

The EEOC's letter, signed by Associate Legal Counsel Peggy Mastroianni, states that the ADA prohibits disability-related inquiries prior to a job offer and that disability-related inquiries following a conditional offer only are permitted if required of all employees in the same job category. Once employment begins, disability-related inquiries and medical examinations must be " job-related and consistent with business necessity ."

The employer in question requires employees to participate in a health assessment, which included answering a short health-related questionnaire, and submitting to a blood pressure test and a blood test. Specific results are provided only to the employee, while the employer received information in the aggregate. Employees who do not participate—and their families—are ineligible for coverage under the health plan.

“Although the Commission has not taken a formal position on the question you have asked, requiring that all employees take a health risk assessment that includes disability-related inquiries and medical examinations as a prerequisite for obtaining health insurance coverage does not appear to be job-related and consistent with business necessity, and therefore would violate the ADA,” EEOC wrote.

To be job-related and consistent with business necessity, the employer must have a reasonable belief based on objective evidence that a medical condition will impair the ability to perform essential job functions or that a medical condition will pose a direct threat, EEOC said. It added that disability-related inquiries and medical exams are permitted after a request for a reasonable accommodation or where periodic exams are required for public safety positions . Neither of these exceptions are applicable here.

While disability-related inquiries and medical exams are permitted as part of voluntary wellness programs, the program here was not voluntary. “Thus, even if the health risk assessment could be considered part of a wellness program, … individuals who do not participate in the assessment are denied a benefit (i.e., penalized for non-participation) as compared to employees who participate in the assessment,” EEOC said.

Published: 06/2009