Legal Alert: EEOC letter questions legality of HRAs

Seemingly oblivious to the ever-increasing concern shared by the rest of the country over rising health care costs, the U.S. Equal Employment Opportunity Commission recently cast doubt on the use of health risk assessments, a proven effective tool in the fight against rising group health insurance costs.

HRAs have gained in popularity in the last few years as employers have conditioned eligibility in their group health plans on the completion of HRAs by employees and their dependents.

The employee is the only one to see the results of his or her HRA. The findings are not typically shared with the employer, except in the de-identified aggregate, which helps the employer and their brokers focus on overall design changes to make sure their plans are meeting the employees’ needs.

In addition, the U.S. Department of Labor has unequivocally endorsed the use of HRAs, as long as the results are not used in any way to impair an individual’s eligibility or benefits, or to increase the cost of coverage. 

Feedback on health appraisals

On March 6, 2009, the Office of Legal Counsel at the EEOC issued a letter to an unidentified municipality, stating that the county’s conditioning of eligibility for its health plan on the completion of an HRA violates the Americans with Disabilities Act.

The EEOC notes that the letter represents an informal discussion on HRAs and health insurance coverage and does not constitute an official opinion by the agency. The public version of the letter omits the location of the county.

In August 2008, county officials informed the EEOC that their employees were required to fill out a short health-related questionnaire, take a blood pressure test, and give a blood sample for screening. As is typical, the results were given directly to the employee; the county received only aggregate results. Employees who refused or failed to participate in the HRA (and their dependents) were ineligible for coverage under the county’s group health plan.

Narrowly focusing on its own rules and ignoring the practical fact that employers simply do not see this information, the EEOC noted that the ADA limits “medical examinations” of employees to those that are job-related and consistent with business necessity.

In keeping with its past rulings, the EEOC in this letter applies a per se presumption against the collection of information through HRAs, without considering that the information collected is never reviewed or used by employers.

The ADA prohibits discrimination in terms, conditions and privileges of employment. It’s difficult to see how the intent of the statute is advanced with this opinion, since the eligibility requirement applies to all employees irrespective of any disability, and treats individuals with disabilities no differently than it treats all other employees.

Getting on board

The EEOC letter has no real legal significance, but the document does provide employers with a sense of the EEOC’s position, which some say it might reevaluate. 

Hopefully, the EEOC will engage in formal rulemaking on this important issue, which will give the agency the opportunity to carefully consider HRAs in the context of their tremendous utility relative to their insignificant and likely non-existent risk of real harm to employees under the ADA.

The agency will have to make a more informed decision that recognizes: (1) the absence of any real concern under the ADA and the practical lack of the advancement of the statute with such a rule, and (2) the presence of greater value to employees in general who benefit from stabilized or even decreased health care costs and better health.

Peter Marathas, Jr. can be reached at PMarathas@proskauer.com.   

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