When Workplace Data Collection Becomes a Medical Inquiry

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.

I recently received a question regarding a proposed fitness activity for a workplace wellness program. The very astute wellness professional called me to ask whether she needed to provide a notice under the Americans with Disabilities Act (ADA) before administering the “Par-Q+” questionnaire to employees. The Par-Q+ questionnaire is a “physical activity readiness questionnaire” that fitness industry professionals use to assess whether an individual should participate in a physical activity. It asks individuals the following Yes/No questions:

1. Has your doctor ever said that you have a heart condition or high blood pressure?
2. Do you feel pain in your chest at rest, during your daily activities of living, OR when you do physical activity?
3. Do you lose balance because of dizziness or have you lost consciousness in the last 12 months?
4. Have you ever been diagnosed with another chronic medical condition (other than heart disease or high blood pressure)? Please list conditions here.
5. Are you currently taking prescribed medications for a chronic medical condition?
6. Do you currently have (or have had within the past 12 months) a bone, joint, or soft tissue (muscle, ligament, or tendon) problem that could be made worse by becoming more physically active? Please list conditions here.
7. Has your doctor ever said that you should only do medically supervised physical activity?

When I have discussed workplace wellness data collection in the past, it has usually been in relation to health risk assessments (HRAs) or biometric screens because those are the typical sources of data collection for workplace wellness. But, the ADA requirements around employee health data collection is broader than HRAS and biometric screens. The ADA generally prohibits “disability-related inquiries” or “medical exams” unless such examination or inquiry is job-related and consistent with business necessity. See 42 USC § 12112(d)(4)(A). However, employers may conduct voluntary medical examinations or disability-related inquiries if part of a worksite wellness program. 42 USC § 12112(d)(4)(B).

Enforcement guidance by the Equal Employment Opportunity Commission (EEOC) (the federal agency that enforces the ADA) shows that disability-related inquiries and medical exams are much broader than HRAs and biometric screens. These inquiries and exams include:

1. Asking employees whether they are currently taking any prescription drugs or medications;
2. Asking employees whether they have any impairments;
3. Testing an employee’s blood pressure or cholesterol levels;
4. Range of motion tests that measure muscle strength and motor function;
5. Psychological tests designed to identify a mental disorder or impairment;
6. Measuring heart rate

See https://www.eeoc.gov/policy/docs/guidance-inquiries.html.

One can imagine that administering a Par-Q+ questionnaire or asking employees to wear a device that monitors their heart rate could fall within the ADA definition of disability-related inquiry or medical exam.

If your workplace wellness activity falls within the category of a disability-related inquiry or medical exam, the ADA requires the employer to give the employee a notice before the information is collected. See 29 CFR § 1630.14(d)(2)(iv). You can find a sample notice on the EEOC website. However, you do not have to use the sample notice as long as your notice essentially informs the employee:

• What information you are collecting
• Why you are collecting it
• What you will do to protect it from improper disclosure (and with whom the information will be shared).

So, while it may be an excellent idea to administer the Par-Q+ questionnaire before implementing a physical activity wellness program, it is an equally good idea to assure employees that the information they are disclosing to you is necessary and safe from improper redisclosure or use. The ADA notice is arguably also a good idea for employer wellness programs that are collecting health information through wearable devices, such as heart rate measurements. Many employees may also want that assurance that the display or uploading of their fitness information will be protected and not improperly shared with their employer.

Barbara J. Zabawa

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