Guest Article

(From the May 18, 2009 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Employers May Not Require Employees to Take a Health Risk Assessment to Participate in Group Health Plan

An employer would violate the Americans with Disabilities Act if it required its employees to take a health risk assessment as a prerequisite for obtaining coverage under the employer's group health plan, the Equal Employment Opportunity Commission advised.

ADA Limits Disability-Related Inquiries and Medical Examinations

In an informal discussion letter, the Equal Employment Opportunity Commission (EEOC) recently counseled that an employer would violate the Americans with Disabilities Act (ADA) if it required its employees to participate in a health risk assessment in order to obtain coverage under the employer's group health plan. Under the facts presented, a county employer required employees to participate in an assessment that included a short health-related questionnaire, a blood-pressure test, and providing blood for use in a blood panel screen. The results of the assessment were provided only to the employee, although aggregate employee information was provided to the employer. Those employees who refused to take the assessment, and members of their family, were not permitted to enroll in the employer's self-funded group health plan.

The EEOC explained that the ADA allows employers to make disability-related inquiries or to require medical examinations of an employee only if they are job-related and consistent with business necessity. An inquiry or examination may be job related and consistent with business necessity when the employer has a reasonable belief based on objective evidence that:

(The EEOC cited "EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.")

While not taking a formal position on the question, the EEOC stated that "requiring that all employees take a health risk assessment that includes disability-related inquiries and medical examinations as a prerequisite for obtaining health coverage does not appear to be job related and consistent with business necessity." The requirement, therefore, would violate the ADA.

Voluntary Wellness Program Cannot Penalize for Non-Participation

The EEOC went on to acknowledge that disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program. However, it noted that a wellness program is considered voluntary only if the employees are not required to participate and are not penalized for their non-participation. The EEOC concluded that, even if this particular health risk assessment could be considered part of a wellness program, it would not be considered a voluntary wellness program because an employee who decides not to participate is penalized by not being able to obtain coverage under the employer's group health plan.

The Informal Discussion Letter is available on the EEOC website at: www.eeoc.gov/foia/letters/2009/ada_disability_medexam_healthrisk.html.

The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations. If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.572.7677, Bart Massey 202.220.2104, Mark Neilio 202.378.5046, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955. Copyright 2009, Deloitte.