EEOC Warns about ADA Impact of Health Assessments

Peggy R. Mastroianni, EEOC associate legal counsel, asserted in an “informal discussion letter” that the scenario of undergoing such an assessment as a prerequisite for coverage“does not appear to be job-related and consistent with business necessity, and therefore would violate the ADA.”

Mastroianni said that even if the health assessment could be considered part of a wellness program, the effort would not be voluntary, because workers choosing not to participate in the assessment are denied a benefit compared to employees who participate.

The EEOC said that its assessment was based on a program that involved answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Information from the assessment went directly to the employee, and the employer received only aggregate information.

The letter noted that disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program, and that a wellness program is voluntary if employees are neither required to participate nor penalized for non-participation

Job-Related

Mastroianni said such inquiries or medical examinations may be job-related and consistent with business necessity when:

• an 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.

The EEOC letter is available here .

Such risk assessments have become increasingly popular in recent years as part of employer efforts to institute consumer driven health programs (see Roping in Health Care , Wellness: Truth and Consequences ).