Can we require employees to complete a health risk assessment which requests personal medical information before they are eligible to participate in the health plan? I’ve heard that asking for employee medical information, even if it’s pursuant to a wellness program, could violate the Americans with Disabilities Act.Answer: Though the ADA generally bars medical exams and inquiries absent a showing a “business necessity” under 42 U.S.C. §12112(d)(4)(A), there exists a “safe harbor” provision in 42 U.S.C. §12201(c)(2) which may allow your company an exemption for such inquiries under the terms of a bona fide benefits plan. The general rule contained in 42 U.S.C. §12112(d)(4)(A) provides that a “covered entity shall not require a medical examination . . . unless such examination is shown to be job-related and consistent with business necessity.”

With a few exceptions, the PDCRA applies to employers with less than 15 employees who are not covered by the ADA; however, employers subject to both statutes must comply with whichever is the most restrictive. 42 USC 12201(b).As mentioned above, the ADA requires an employer to make reasonable accommodations to the known physical or mental limitations of an individual with a disability. The ADA defines reasonable accommodation through examples, such as “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations.”

Flambeau argued that its wellness plan was covered by the ADA’s insurance safe harbor, which exempts the administration of a bona fide benefits plan from liability for involuntary medical examinations. Id. at 4 (citing 42 U.S.C. §12201(c)(2) & (c)(3)). The EEOC, meanwhile, argued that the safe harbor provision was inapplicable to Flambeau’s program.

The district court found that the wellness program was permissible because it fell within the “safe harbor” provision of the ADA for bona fide benefit plans. 42 U.S.C. 12201(c)(2). In so holding, the district court concluded the program was voluntary because an employee could decide not to participate, but remain employed.After the EEOC initiated its lawsuit against Flambeau, the EEOC issued its 2016 Regulations relating to the Equal Employment Provisions of the Americans with Disabilities Act (the “2016 ADA Rule”) (29 C.F.R. §§ 1630.14(d)(3)).

The EEOC’s position on wellness programs under ADA and GINA is reflected in final regulations issued in May 2016 (discussed here and here). Those regulations state two rules that are relevant to this case: An ADA safe harbor that allows bona fide plans “based on underwriting risks, classifying risks, or administering . . . risks” (42 U.S.C. § 12201(c)(2), which we call the “underwriting safe harbor”) does not apply for wellness programs. Consequently, disability-related inquiries and medical examinations are permitted only if they are voluntary. A program will not be considered voluntary if the incentive for participation exceeds 30% of the cost of self-only coverage (50% for certain tobacco-related incentives).

The EEOC’s position on wellness programs under ADA and GINA is reflected in final regulations issued in May 2016 (discussed here and here). Those regulations state two rules that are relevant to this case:An ADA safe harbor that allows bona fide plans “based on underwriting risks, classifying risks, or administering . . . risks” (42 U.S.C. § 12201(c)(2), which we call the “underwriting safe harbor”) does not apply for wellness programs. Consequently, disability-related inquiries and medical examinations are permitted only if they are voluntary.A program will not be considered voluntary if the incentive for participation exceeds 30% of the cost of self-only coverage (50% for certain tobacco-related incentives).

The EEOC’s position on wellness programs under ADA and GINA is reflected in final regulations issued in May 2016 (discussed here and here). Those regulations state two rules that are relevant to this case: An ADA safe harbor that allows bona fide plans “based on underwriting risks, classifying risks, or administering... risks” (42 U.S.C. §12201(c)(2), which we call the “underwriting safe harbor”) does not apply for wellness programs. Consequently, disability-related inquiries and medical examinations are permitted only if they are voluntary.

While most provisions of the final ADA rule and final GINA rule are identical to their respective proposed rules, there are some key differences, which we explain below in Q&A format below.Does the ADA’s safe harbor provision apply to employer wellness programs? No. The ADA’s safe harbor provision states that the ADA “shall not be construed to prohibit or restrict . . . a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.” 42 U.S.C. § 12201(c). The Commission made no secret about its opinion that Seff and Flambeau were “wrongly decided” (including by appealing the Flambeau decision to the Seventh Circuit).

[21] The final GINA rule does not, however, adopt any other new protections addressing confidentiality of genetic information. Notably, despite two well-reasoned court decisions to the contrary,[22] the final ADA rule expressly states that the statutory “safe harbor” provision set forth in 42 U.S.C. § 12201(c), which, in relevant part, states that an insurer or entity that administers benefit plans is not prohibited from “establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law,” does not apply to wellness programs, even if such plans are part of a covered entity’s health plan.[23] The EEOC has already begun to use this new regulation as a sword in pending litigation, arguing that its regulation is due substantial deference and therefore the defendant’s safe harbor defense should be dismissed.

The EEOC did not address the issue of a “voluntary” program under its proposed rules, but instead viewed the health risk assessment and biometric screening as a prohibited mandatory medical examination under the ADA. The court disagreed, however, noting that the ADA contains a specific insurance safe harbor allowing employers to establish and administer “the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks . . . .” 42 U.S.C. § 12201(c)(2). The court found that Flambeau’s wellness program fit squarely within this safe harbor provision.