Employer Mandated Health Risk Assessments and Medical Exams

[Guest boecar]

Question in brief: Has anyone seen (or prepared) legal analysis analyzing whether it is permissible under the ADA to require that employees complete a detailed health risk assessment and submit to a medical examination in order to be eligible to participate in an employer-sponsored group health plan?

Here is additional detail:

Several employers have asked me whether they can require employees to complete a detailed health risk assessment and submit to a medical exam in order to become eligible (or continue to be eligible) to participate in the employer's group health plan. The medical exam would consist of a blood screening and a cholesterol test. The medical exam would be administered by a third party health professional and no individually identifiable health information would be shared with the employer. The employee's job would not be affected by the result of the test, and the cost of participating in the health plan would not be affected by the result of the test. The medical information would be communicated to the employee to guide them in improving their health.

If an employee refused to take the exam he or she would not be eligible to participate in the group medical plan.

The short version of my answer has been: this violates the Americans with Disabilities Act (the ADA), which prohibits employers from requiring that employees submit to a medical examination. There is an exception for "voluntary" examinations, but an exam is not voluntary if an employee is penalized for refusing to participate.

However, some employers have questioned this advice, citing their knowledge of other employers who have implemented such a program. One employer cited a recent article posted at benefitnews.com, which reported that "Cadmus Communications has taken a radical approach to employee wellness: It requires employees to take a health risk assessment, blood pressure screening and cholesterol screening. Seventeen employees at the publishing services company in Richmond, Va., lost their health coverage in 2005 because they didn't cooperate." See the entire article at http://www.benefitnews.com/health/detail.cfm?id=8494 The article says that Cadmus checked with their lawyers and determined that this program was permitted.

Can anyone provide legal reasoning as to how such a practice could be permissible under the ADA? (And, just to foreclose discussion of things that would work, but are different from what's described the above -- I do believe that an employee could be offered an incentive to take the exam as long as the proposed HIPAA bona fide wellness program rules are complied with, and I also believe that this mandatory screening could be given prior to an employment offer because the ADA only prohibits mandatory exams with respect to employees.)

Thanks in advance for your thoughts.

[GBurns]

I do not think that the Cadmus article explains enough about the refusal to cooperate in order to use it as precedent etc. Additionally Cadmus and any others are all still new and have yet to be tested with litigation or otherwise.

I am curious to see what responses you will get. I have always wondered about how far an employer can go with "during employment" medical testing without violating ADA which requires that it be job related and consistent with business necessity.

And since there will be many who will not be covered under ADA, I wondered about those who are covered under such things as the Pregnancy Discrimination Act.

Then if the employer makes concessions for those under ADA or PDA, will that be discrimination or reverse discrimination against the others?

I also wonder how it squares with HIPAA and the state version of "HIPAA"?