In an effort to control soaring health care costs, many employers have introduced wellness programs, including health risk assessments. Seems like a great way to encourage and ensure a healthy workforce, thereby keeping an eye on the bottom line, right? Not so fast, according to the EEOC. In a non-binding opinion letter dated March 6, 2009, the EEOC opined that requiring employees to participate in a health risk assessment in order to be eligible for company-sponsored health insurance would violate the Americans With Disabilities Act (“ADA”). Health risk assessments tend to elicit disability-related information and/or genetic information by means of questions or medical examinations.
Under the ADA, employers may only make disability-related inquiries and require medical exams that are job-related and consistent with business necessity. And under the Genetic Information Nondiscrimination Act (“GINA”), employers can offer “voluntary” wellness programs, but cannot require the involuntary disclosure of genetic information. The employer in question required employes to participate in the health risk assessment that included a health-related questionnaire, a blood pressure test, and the submission of a blood sample. Employees who chose not to participate in the assessment were ineligible for coverage under the employer’s health plan. Because employees were penalized for nonparticipation, the EEOC opined the program was not voluntary. Further, there was no showing of business necessity for the assessment.
The bottom-line: while the EEOC’s opinion letter in this case was case-specific and non-binding, employers would do well to keep potential ADA implications in the back of their minds when dealing with health risk assessments. As always, consult with counsel if questions arise.
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