The Equal Employment Opportunity Commission (EEOC) recently expressed its view that an employer's mandatory health risk assessment likely violates Title I of the Americans with Disabilities Act (ADA). The EEOC's informal opinion letter was in response to a question posed by a county employer asking if it was a violation of the ADA to require its employees to take a health risk assessment to qualify for participation in the county health plan.

      Under the county's requirement, employees had to participate in the health risk assessment by completing a health-related questionnaire, taking a blood pressure test, and providing blood for screening. If employees declined to participate in the health risk assessment, they and their family members were ineligible for coverage under the county's health plan. The results of the health risk assessment were provided only to the employee. The county only received aggregate information.

      In its letter, the EEOC explained that the ADA prohibits all disability-related inquiries and medical examinations before a job offer is made. Asking disability-related questions and requiring medical exams is allowed after a job offer is made; however, an employer may only do so if it makes such requests for all employees in the same job category. Once employment begins, an employer may only ask disability-related questions and require medical exams if such questions and exams are related to the job and consistent with business necessity.

      In the county's case, the EEOC expressed its view that requiring employees to take a health risk assessment that includes answering disability-related questions and taking medical exams to obtain health insurance coverage is not job-related or consistent with business necessity. Thus, the EEOC's view is that imposing such a requirement would violate the ADA.

      The EEOC letter noted those instances when a disability-related inquiry or medical exam of an employee may be allowed:

• when an employer believes, 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;

• when an employer follows up on an employee's request for reasonable accommodation when the disability or need for accommodation is not known or obvious;

• where the examination is conducted under other specific circumstances (e.g., where periodic medical exams are required of employees in positions affecting public safety); or

• where disability-related inquiries and medical exams are included as part of a voluntary wellness program. A wellness program is voluntary if employees are not required to participate in the program or penalized for non-participation. (Note that the EEOC has yet to express an opinion on whether a wellness program is still considered "voluntary" under the ADA if it complies with the wellness program rules under the Health Insurance Portability and Accountability Act of 1996).

      In this case, the EEOC opined that the employer's requirement that employees complete a health risk assessment as a condition of health plan eligibility violates the ADA because it does not meet any of the above rules.

      The EEOC's informal opinion letter simply expresses its view on the question posed by the employer seeking the opinion. It does not constitute regulatory action or official binding guidance from the EEOC. However, it does provide important insight on the position the EEOC would likely take in an enforcement action or litigation. The EEOC has informally expressed similar opinions in the past through other informal channels. This opinion letter, however, is the strongest and most definitive statement of the EEOC's likely position on this issue that we have seen.

      Employers should review their health plans, health risk assessments, and wellness programs in light of this EEOC letter and assess any risks with maintaining mandatory health risk assessment programs. If you have questions or need additional information regarding the EEOC opinion letter or health risk assessments, please contact Chris Sears, Melissa Proffitt Reese or your Ice Miller LLP employee benefits attorney.