Mandatory Health Risk Assessments Violate the ADA

December 2, 2010

An Equal Employment Opportunity Commission (EEOC) Informal Discussion Letter reveals the EEOC’s opinion that health risk assessments (HRA) are invalid as long as they are mandatory. In other words, an employer could be sued under the Americans with Disabilities Act (ADA) for refusing health care coverage to an individual because he or she failed to participate in an HRA.

An HRA is a type of medical examination to determine an individual’s overall level of wellness. It includes a questionnaire asking about lifestyle, diet, exercise choices and biometrics testing cholesterol and blood pressure. After completing the assessment, the individual is given a score and practical ways of improving their health. In answering the HRA questionnaire, however, the individual may disclose information related to disability or medical examinations or both. This information is protected under the ADA and employers may not ask for this type of information unless it is job-related and consistent with a business necessity. Requiring employees to complete an HRA is not considered job-related and consistent with a business necessity because it is not related to an employee’s ability to perform an essential job function. An HRA is too general and too subjective for such a purpose.

An HRA is mandatory if non-participating individuals are penalized compared to participating individuals. For example, the denial of health care coverage or other benefits would constitute a penalty, but the forfeiture of an inducement to participate in an HRA is not a penalty, as long as the inducements meet certain criteria set by HIPAA. The value of the participation rewards may not exceed 20% of the total health insurance coverage for the individual employee or the employee and dependent. In addition, the reward must be reasonably designed to prevent disease or promote health, employees must be given the opportunity to participate in the program at least once a year, and similarly situated employees should receive the same reward.

As long as the HRA is part of an employer’s voluntary wellness program, the HRA is legal. But, when the HRA is a prerequisite for health insurance coverage, it is a violation of the ADA. Additionally, employers should look at their HRA incentives to make sure they do not violate HIPAA.