Requiring employees to complete a lengthy wellness questionnaire in order to receive funds from a health reimbursement arrangement would violate the Americans With Disabilities Act (ADA) because many of the 100-plus questions are "disability-related inquiries," according to a recent opinion letter from the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC's "informal discussion letter," posted Oct. 6, is the second this year to reject a health risk assessment as an impermissible inquiry. In addition to prohibiting disability-based discrimination, the ADA restricts employers' use of "disability-related inquiries and medical examinations." For current (as opposed to entering) employees, such inquiries — which include "questions likely to elicit information about a disability" — must be "job-related and consistent with business necessity." These rules apply to all employees, whether or not they have an ADA-recognized disability.

The EEOC was responding to an employer whose health risk assessment included 132 questions on subjects such as "Family Health History," "Self Care," "Personal Health" and "Health Choices." While noting that the commission "has not taken a formal position" on the issue, EEOC staff found that the employee questionnaire:

includes many disability-related inquiries — such as questions about how often they feel depressed; whether they have ever been told that they have certain conditions, such as asthma, cancer, heart disease, or diabetes; how many different prescription medications they currently take (questions 21-47); or how much alcohol they drink (questions 97-107)…

These questions do not appear job-related since they are not tailored to specific jobs or workplace threats or accommodations, the letter continues. And while the ADA exempts certain "voluntary wellness programs," this health risk assessment 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."

However, many other questions on the health risk assessment would not run afoul of the ADA because they are not disability-related, EEOC staff noted. These include "Self Care" questions such as whether an employee sees a doctor routinely, as well as "Health Choices" questions regarding diet and exercise.

The EEOC's letter "ADA: Health Risk Assessments" is available on the commission's Web site at http://www.eeoc.gov/foia/letters/2009/ada_disability_medexam_healthrisk.html.