In an informal opinion letter released October 6, 2009, the Equal Employment Opportunity Commission (EEOC) determined that requiring employees to complete a health risk assessment as a precondition to receiving payment from an employer-funded health reimbursement arrangement can violate the Americans with Disabilities Act (ADA) in certain circumstances.

The letter, written by EEOC Assistant Legal Counsel Peggy Mastroianni, was in response to an employer that asked whether requiring employees to answer more than 100 questions in several categories, including “Personal Health,” “Health Choices-Alcohol and Tobacco,” “Health Changes,” and “Family Health History,” as a prerequisite to receiving health expense reimbursement under an employer-funded health reimbursement plan would violate the ADA. Mastroianni explained that the ADA permits employers to make disability-related inquiries and obtain medical information from employees in certain circumstances, such as if the inquiry is job-related and consistent with business necessity, is part of a follow-up to a request for a reasonable accommodation, or is part of a voluntary wellness program. A program is considered “voluntary” if the employees are neither required to participate nor penalized for non participation.

In evaluating the employer’s risk assessment questionnaire to determine whether the questions were permissible in the letter-writer’s situation, Mastroianni alluded to the recently-proposed regulations implemented to comply with the ADA Amendments Act (ADAAA), which list a number of conditions that would be automatically deemed disabilities under the ADA. For example, Mastroianni wrote that asking employees about how often they feel depressed; whether they have ever been told that they have conditions such as asthma, cancer, health disease, or diabetes, is a disability-related question. In a footnote, Mastroianni also mentions that as of November 21, 2009, the Genetic Information Nondiscrimination Act (GINA) will prohibit employers from obtaining any genetic information (including family medical history) from employees except in very limited circumstances. Mastroianni points out that while asking employees about a relative’s health would not likely elicit information about whether an employee has a disability, GINA would prohibit such inquiries.

In this particular situation, Mastroianni claimed that providing the questionnaire as a prerequisite for obtaining health expense reimbursement did not appear to be job-related and consistent with business necessity. Because the assessment was asked of all employees, there was no indication that a particular employee was unable to do his or her job, or would pose a direct threat to the workplace. Moreover, the questions were not part of a request for a reasonable accommodation, nor were they asked to monitor employees in positions of public safety. Mastroianni also emphasized that even if the health risk assessment were part of an employee wellness program, it could not be considered “voluntary” because declining to respond to the questions would penalize employees by rendering them ineligible for health expense reimbursement.

Mastroianni explained, however, that certain questions did not appear to be disability-related, such as those directed towards the employee’s self-care and health choices. Questions in these categories included how many servings of fruit or vegetables the employee eats, and how much the employee exercises. According to Mastroianni, these questions “are not likely to elicit information about a disability and, therefore, are not subject to the ADA’s restrictions.”

Although opinion letters are not formal positions taken by the EEOC, they do provide an indication as to how the agency would react if presented with a similar set of circumstances in a lawsuit. Employers, therefore, should be mindful of the types of questions asked of employees to ensure they can not be construed as disability-related, nor seek an employee’s genetic information.