A prerequisite for employees to complete a health risk assessment that includes disability-related questions in order to obtain reimbursement for health expenses is prohibited by the Americans with Disabilities Act, according to an Equal Employment Opportunity Commission Assistant Legal Counsel.

In an informal discussion letter, Peggy R. Mastroianni says although the EEOC has not taken a formal position on whether employers are permitted to require employees to complete a health risk assessment in order to receive monies from an employer-funded health reimbursement arrangement, in the particular reimbursement plan submitted, the “many disability-related inquiries” employees had to answer did not appear to be “job-related and consistent with business necessity.” The health risk assessment included questions about how often employees 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 or how much alcohol they drink.

“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 [the employer] has concerns that a particular employee will be unable to do his job or will pose a direct threat because of a medical condition,” Mastroianni says in the letter. “[The employer] 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 [the employer] from making disability-related inquiries or requiring a medical examination under the circumstances…described.”