In an informal discussion letter dated March 6, 2009, the Equal Employment Opportunity Commission (EEOC) has determined that requiring employees to take health risk assessments in order to obtain health insurance coverage would violate the Americans with Disabilities Act (ADA).  According to EEOC Associate Legal Counsel Peggy R. Mastroianni, such a mandatory health assessment would violate the ADA’s provisions requiring disability-related inquiries and medical examinations to be job-related and consistent with business necessity.

The official inquiry concerned a county that had implemented a clinical health risk assessment (CHRA) as a requirement to obtain health insurance coverage under a self-funded plan. Employees were required to participate in the CHRA, which included answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Those who declined to participate were rendered ineligible for coverage under the county’s plan. In response to this inquiry, the EEOC acknowledged that it has not taken a formal position on the issue. However, it determined that requiring all employees to take this 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.

The response also touched upon the legality of such disability-related inquiries and medical examinations as part of a voluntary wellness program. Such a program is voluntary, Mastroianni writes, if employees are neither required to participate nor are penalized for nonparticipation. In this particular instance, the EEOC advised that even if the health risk assessment could be considered part of a wellness program, the program would not be voluntary, as those declining to participate would be denied coverage.

A portion of the EEOC’s initial response to this inquiry (dated January 6, 2009) was officially rescinded in the follow-up discussion letter. The original response described the circumstances under which employers could offer employees inducements to participate in wellness programs without running afoul of the ADA. The EEOC responded that a wellness program would be voluntary and any disability-related inquiries or medical exams conducted in connection with the program would not violate the ADA if the inducement to participate in the program did not exceed twenty percent of the cost of employee-only or employee and dependent coverage under the plan, consistent with regulations promulgated under the Health Insurance Portability and Accountability Act (HIPAA). The portion regarding what level of inducement in a wellness program would trigger ADA compliance problems was officially rescinded, as the inquiry did not specifically ask this question, and the EEOC noted that it is still examining what, if any, financial inducement to participate in a wellness program is permissible under the ADA.