EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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: Health Risk Assessments

August 10, 2009

[ADDRESS]

Dear ____:

This is in response to your June 25, 2009, letter to the Equal Employment Opportunity Commission (EEOC or Commission) asking whether the Americans with Disabilities Act (ADA) permits your client to require its employees to complete a health risk assessment in order to receive monies from an employer-funded health reimbursement arrangement.⁽¹⁾ You provided a copy of the health risk assessment that asks employees to answer more than one hundred questions in several categories: "Family Health History" (questions 9-16); "Self Care" (questions 17-20); "Personal Health" (questions 21-47); "Women's Health" (questions 48-56); "Older Adult Health" (questions 57-61); "Health Choices-Nutrition" (questions 62-90); "Health Choices-Physical Activity" (questions 91-96); "Health Choices-Alcohol and Tobacco" (questions 97-113); "Health Choices-Safety" (questions 114-121); and "Health Changes" (questions 122-132).

Title I of the ADA strictly 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.⁽²⁾ Once employment begins, an employer generally 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 ("Enforcement Guidance"), available on our website at http://www.eeoc.gov/policy/docs/guidance-inquiries.html. This standard may be met 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." See Enforcement Guidance at Q&A 5.

Disability-related inquiries and medical examinations are also permitted where 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). Id. at Q&A 8 and 18. Finally, disability-related inquiries and medical examinations are 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. at Q&A 22.

Although the Commission has not taken a formal position on the question you have asked, requiring employees to complete a health risk assessment that includes many disability-related inquiries -- such as questions about how often they feel depressed; whether they ever have been told that they have certain conditions, such as asthma, cancer, heart disease, or diabetes; how many different prescription medications they currently take (questions 21-47); or how much alcohol they drink (questions 97-107) -- as a prerequisite to obtaining reimbursement for health expenses does not appear to be job-related and consistent with business necessity. Because all employees are required to complete a health risk assessment as a prerequisite for eligibility for a health insurance program, there is no indication that your client has concerns that a particular employee will be unable to do his job or will pose a direct threat because of a medical condition. Your client also does not appear to be 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 for health expenses. For these reasons, the Commission believes that the ADA prohibits your client from making disability-related inquiries or requiring a medical examination under the circumstances you have described.

Finally, although many questions on your client's health risk assessment are disability-related, a number of questions are not. For example, questions about "Self Care," such as whether an employee sees a personal doctor for routine care or has a health care directive (questions 17-20), questions about "Health Choices," such as how many servings of vegetables or fruit an employee eats, whether he takes a vitamin supplement, or eats breakfast (questions 62-90), and questions about "Health Choices," such as how much an employee exercises, are not likely to elicit information about a disability and, therefore, are not subject to the ADA's restrictions.

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 EEOC.

Sincerely,

/s/
Peggy R. Mastroianni
Associate Legal Counsel

Footnotes

1 - Three types of accounts can be used to help fund employee health care expenses: flexible spending accounts, medical savings accounts, and health reimbursement arrangements. Health reimbursement arrangements are a type of health insurance plan that reimburses employees for qualified medical expenses. Under flexible spending accounts, employees contribute funds through a salary reduction agreement. Under medical savings accounts, the employee or employer -- never both -- makes contributions. Under a health reimbursement arrangement, the employer provides the funds, not the employee See U.S. Bureau of Labor Statistics, "Health Spending Accounts," at https://www.bls.gov/opub/mlr/cwc/health-spending-accounts.pdf. This letter assumes that your client funds the account.

2 - 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 applicants or employees, except under certain very limited circumstances. It, therefore, generally will be unlawful for employers to ask applicants and employees whether a relative has or ever had certain medical conditions, such as cancer, diabetes, or heart disease. Although questions about the health of an employee's family member arguably are not likely to elicit information about whether an employee currently has a disability, GINA generally will prohibit such questions. Your client, therefore, will likely violate GINA if it continues to ask questions about an employee's family medical history (questions 9-16) as of November 21, 2009, even if the questions are considered part of a wellness program since, like the ADA, GINA requires that such a program be voluntary. As we explain in our analysis of the ADA, infra, even if your client's questionnaire is part of a wellness program, we do not believe it would be considered voluntary.

This page was last modified on October 6, 2009.

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