“Mandatory” or “Required” HRAs or Biometric Screens are Problematic Under the Law

The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.

The language you use in your workplace wellness program materials is important.  I see a lot of workplace wellness messages that use the word “mandatory” or “required” when describing the program’s health risk assessment and/or biometric screen.  Those words raise red flags relating to compliance with the Americans with Disabilities Act (ADA).  The frequent use of these words leads me to believe that there is still a lot of confusion about when the ADA applies to workplace wellness programs.  This blog post attempts to reduce that confusion. 

When does the ADA Apply to Worksite Wellness Programs?

The ADA applies to wellness programs that ask employees for their health information, usually through a health risk assessment/questionnaire or through a biometric screen.  The ADA does not apply to wellness program activities that do not involve health information collection, such as walking challenges, nutrition programs, or health education classes.  The reason why the ADA is limited to programs involving employee health information collection has to do with the ADA’s general prohibition against asking employees “disability-related inquiries” or asking them to take a medical exam.  The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces compliance with the ADA, views health risk assessments (HRAs) as a “disability-related inquiry” and a biometric screen as a “medical exam.” 

Our Worksite Wellness Program Includes an HRA and a Biometric Screen.  Are those Allowed under the ADA?

Yes, they are allowed under the ADA, as long as they are part of a “voluntary” employee wellness program.  42 USC § 12112(d)(4)(B). 

What is a “Voluntary” Wellness Program under the ADA?

There is no definition of the word “voluntary,” but the EEOC in rules issued in May 2016 stated that employers could offer incentives for completing an HRA or biometric screen if the incentive value was no more than 30% of the cost of self-only coverage.  So, according to the EEOC, an incentive, whether monetary or in-kind (such as days off or a prize), could still make the HRA or biometric screen voluntary, as long as the value of that incentive did not exceed 30% of total cost of self-only coverage.  However, as of January 1, 2019, the EEOC must delete the 30% incentive limit from the rules because of a decision in the case entitled AARP v. EEOC.  As a result, after January 1, 2019, there will be no guidance as to what amount of incentive, if any, will meet the ADA’s “voluntary” requirement.

Will our Wellness Program be able to Incentivize HRAs or Biometric Screens after January 1, 2019?

It will depend on the incentive amount, whether there are any alternatives to earning the incentive and your employee population.  If your employee population consists of a lot of low-wage workers, a large incentive may give the perception that the HRA or biometric screen is “mandatory,” and not voluntary.  Also, if your employee population consists of a lot of workers who value their health information privacy, asking employees to divulge their health information in exchange for an incentive could make the HRA or biometric screen seem more coercive than voluntary.  So, it’s important to know your employee population.  Also, you may want to consider allowing employees another way to earn the incentive if they are uncomfortable with disclosing their health information through the HRA or biometric screen.  Some alternatives may be attending a class or participating in an exercise challenge.

But our HRAs and Biometric Screening Activities are Mandatory.  How Can We Comply with the ADA?

The fact that you label your HRAs and biometric screens as “mandatory” parts of your wellness program undercuts the voluntary nature that the ADA requires of your health information collection activities.  The ADA requires health information collection activities to be part of a “voluntary” wellness program.  If you state that your HRA or biometric screen is “mandatory,” that does not sound like a voluntary program.  Use of words like “mandatory” or “required” in relation to HRAs or biometric screens should be avoided.

Barbara J. Zabawa

President of the Center for Health and Wellness Law, LLC
wellnesslaw.com