In a letter dated August 10, 2009, the Equal Employment Opportunity Commission (the “EEOC”) dealt with the issue of whether the Americans with Disabilities Act (the “ADA”) allows an employer to require its employees to complete a health risk assessment, in order to receive reimbursement from an employer-funded health reimbursement arrangement (an “HRA”). This health risk assessment asks the employee to answer more than one hundred questions in the following categories: family health history, self care, personal health, women’s health, older adult health, and various health choices. Specific disability-questions in this health risk assessment include how often the employee feels depressed, whether the employee has ever been told that he or she has certain conditions, such as asthma, cancer, heart disease, or diabetes, and how many different prescription medications the employee currently takes or how much alcohol the employee drinks.
In dealing with this issue, the EEOC noted that the ADA strictly limits when an employer may obtain medical information from employees. Once employment has begun, an employer generally may make disability-related inquiries and require medical examinations:
–if they are job-related and consistent with business necessity (i.e., the employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition);
–when they follow up on a request for reasonable accommodation, or where the examination or other monitoring is conducted under specific circumstances (e.g., such as where periodic medical examinations are required of employees in positions affecting public safety); or –as part of a voluntary wellness program (with voluntary meaning that employees are neither required to participate nor penalized for non-participation).
The EEOC said that requiring employees to complete a health risk assessment which includes many disability-related inquiries, such as those included in the health risk assessment at issue, as a prerequisite to obtaining reimbursement from the HRA does not appear to be job-related and consistent with business necessity. Since all employees are required to complete the health risk assessment to receive such reimbursements, there is no indication that the employer has any concern that a particular employee will be unable to do his or her job or will pose a direct threat because of a medical condition. Also, it appears that the employer is not obtaining medical information in response to a request for reasonable accommodation or because it is monitoring employees in positions affecting public safety. Finally, even if the health risk assessment could be considered part of a wellness program, it is not voluntary, because it penalizes any employee who does not complete the questionnaire by making him or her ineligible to receive reimbursement from the HRA. The EEOC concluded that the ADA prohibits this employer from requiring the employees to complete the health risk assessment under these circumstances.
In a footnote, the EEOC pointed out that, as of November 21, 2009, the Genetic Information Nondiscrimination Act (“GINA”) will prohibit employers from obtaining any genetic information (which includes family medical history) from job applicants or employees, except under certain very limited circumstances. Therefore, it will generally be unlawful for an employer to ask an applicant or employee any questions about the health of a family member, for example, whether a relative has or ever had certain medical conditions, such as cancer, diabetes, or heart disease. Thus, the employer in this case will likely violate GINA, if it continues to ask questions about an employee’s family medical history after GINA becomes effective.