Joy Sellstrom Quoted in Employee Benefits News
“EEOC Opinion: Mandated Health Assessments Violate ADA”

Joy Sellstrom was quoted in the July 2009 issue of Employee Benefits News article, “EEOC Opinion: Mandated Health Assessments Violate ADA.” The article discusses a letter a county employer received from the Equal Employment Opportunity Commission (EEOC) expressing its opinion that requiring employees to participate in a health risk assessment as a condition of eligibility in its health plan would be a violation of the American’s with Disability Act (ADA).  Joy noted, “The informal EEOC letter is nonbinding and does not constitute an official opinion from the agency.”

The article noted that the letter does nothing to clear up long-standing concerns employers have about various, seemingly conflicting, regulations that cover wellness plans.  According to Joy, “If you look at your wellness program from a HIPAA perspective, HIPAA offers a roadmap."  She noted that a Field Assistance Bulletin (FAB) issued by the Department of Labor contains a checklist to help employers determine whether a plan or program complies with HIPAA's requirements on wellness programs, and that the FAB contains an example of a plan that requires employees to complete a health risk assessment in order to enroll which meets the HIPAA requirements.  That’s different from the EEOC’s opinion.  She also noted “The EEOC hasn’t given us formal guidance or taken a position on whether a wellness program that complies with HIPAA rules will be okay under the ADA. That’s where employers are concerned. They’re hoping for more guidance. As it stands now, it’s completely unclear if you could have a program that meets HIPAA and still meets ADA. It’s a gray area. We need clearer guidance from the EEOC.”

In its letter, the EEOC stated that disabiltiy-related inquiries and medical exams are permissible under a voluntary wellness program, but in the county’s case, even if the assessment were part of a wellness program, the program would not be voluntary because nonparticipants were penalized for nonparticipation.

Joy noted, “The intense interest in health care reform may lead to clearer guidance on the various regulations governing wellness programs. The momentum is toward encouraging wellness programs that offer some type of incentives, so if health care legislation is enacted, maybe it will be clearer. Maybe that will be a breaking point.”