EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Disability-Related Inquiries and Medical Examinations; Health Risk Assessment

March 6, 2009

[ADDRESS]

Dear ____:

On August 7, 2008, you sent this office a letter asking whether ____County may require employees to participate in a health risk assessment as a condition for participating in its health insurance plan. In a letter dated January 6, 2009 from former Legal Counsel Reed Russell, we responded that although the Equal Employment Opportunity Commission (“EEOC” or “Commission”) has not taken a formal position on this issue, this office believes the policy you described would violate provisions of the Americans with Disabilities Act (“ADA”) that require disability-related questions or medical examinations of employees to be job-related and consistent with business necessity. See 42 U.S.C. § 12112(d). Our response went on to describe the circumstances under which employers could offer employees inducements to participate in wellness programs without violating the ADA. We said that a wellness program would be considered voluntary and any disability-related inquiries or medical examinations conducted in connection with it would not violate the ADA, as long as 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 pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”).

Because your letter did not raise the question of what level of inducement to participate in a wellness program would be permitted under the ADA, we are rescinding the portion of the January 6, 2009 letter that discusses this issue and have enclosed a revised version of that letter that answers only the specific question you asked. The Commission is continuing to examine what level, if any, of financial inducement to participate in a wellness program would be permissible under the ADA.

I hope this information is helpful to you.

Peggy R. Mastroianni

/s/
Associate Legal Counsel

ATTACHMENT

ADA: Disability-Related Inquiries and Medical Examinations; Health Risk Assessment

March 6, 2009

[ADDRESS]

Dear____:

This responds to your August 7, 2008 letter to the Office of Legal Counsel, Equal Employment Opportunity Commission (EEOC), in which you pose the following question: “Does the requirement to participate in the [Clinical Health Risk Assessment (CHRA)] . . . to qualify for participation in the [____ County (County)] health plan constitute a violation of the Americans with Disabilities Act?” Your letter states that the County has implemented the CHRA “as a requirement to obtain coverage under its self-funded plan.” Employees must agree to participate in the CHRA, which includes answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Employees declining to participate in the program and members of their families become ineligible for coverage under the County’s health plan. Your letter also notes that information from the health risk assessment goes “directly and exclusively” to the employee; the County only receives information in the aggregate.

Title I of the Americans with Disabilities Act (ADA) limits when an employer may obtain medical information from applicants and employees. Before a job offer is made, the ADA prohibits all disability-related inquiries (i.e., questions likely to elicit information about a disability) and medical examinations, even if they are related to the job. After a conditional offer is made, an employer may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category. Once employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. See 42 U.S.C. § 12112(d); 29 C.F.R. §§ 1630.13, 1630.14; EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, 8 Fair Empl. Prac. Man. (BNA) 405:7701 (“Enforcement Guidance”). (This document is available on our website at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.)

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. A disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” Id. Q&A 5, at 405:7708. The Enforcement Guidance further notes that an employer may seek disability-related information or require a medical examination that follows up on a “request for reasonable accommodation when the disability or need for accommodation is not known or obvious,” id. Q&A 7 & 10, at 405:7711, 7713; or where the examination or other monitoring is conducted under specific circumstances not applicable here (e.g., where periodic medical examinations are required of employees in positions affecting public safety). Id. Q&A 14-20, 405:7715-18.

Disability-related inquiries and medical examinations are also permitted as part of a voluntary wellness program. A wellness program is voluntary if employees are neither required to participate nor penalized for non-participation. Id. Q&A 22, at 405:7718-19. In this instance, however, an employee’s decision not to participate in the health risk assessment results in the loss of the opportunity to obtain health coverage through the employer’s plan. Thus, even if the health risk assessment could be considered part of a wellness program, the program would not be voluntary, because 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.

I hope this information is helpful. Please note that this letter is an informal discussion of the issues you raised and does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission (EEOC).

Sincerely,

/s/
Peggy R. Mastroianni
Associate Legal Counsel

This page was last modified on March 18, 2009.

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