I recently received an inquiry on the topic of Employer Health Risk Assessments. The person told me in the past, the company offered the assessments during annual insurance open enrollment. This year, the flier stated, “if you complete both the Biometric Screening and My Blue Print, you pay less than those who do NOT participate. Those that do NOT complete both steps will pay more per month.”
What employers are trying to do is figure out ways to place the burden of payment of the employee. If the employee refuses to comply, the company offers them a policy that has a much higher deductible up to $1500 and/or a higher coinsurance. The HIPAA privacy act allows for incentives for Wellness program and assessments of no more than 30% of the premium cost. This aspect of the HIPAA was upheld by The Supreme Court. However, it does not state if it can be voluntary or mandatory.
What is part of a risk health assessment? Here are some of the areas. Many companies have a computerized program and employees are given dates and times to fill it out.
- Health perceptions
- Medical conditions
- Medical risk factors
- Lifestyle risk factors
- Readiness to change
The two questions posed to me were, what is my legal right and isn’t my health information private? Those are difficult questions to answer because those issues still fall into a grey legal area. Here is some of the information available at this point.
The Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits genetic discrimination in employment and health insurance. Therefore, no assessment can ask any family history or require blood tests like cholesterol. This law was passed to further supplement the HIPAA law and privacy related to genetic information.
In 2009, the Equal Employment Opportunity Commission (EEOC), sent an informal response to the question of employer non-voluntary health risk assessments. The EEOC determined that requiring all employees to take this HRA that includes disability-related inquiries and medical examinations as a prerequisite for obtaining group health coverage does not appear to be job-related and consistent with business necessity, and therefore it would violate the ADA. The EEOC has released other informal letters but has not specified or taken a side about the assessments.
In April, 2011, the Southern District of Florida, issued a summary judgement for the Broward County in a case brought by an employee on the grounds that mandatory assessments violated the ADA. The case was dismissed in favor of Broward County.
Recently, a class action complaint was filed against the Oregon Department of Corrections, the Oregon State Police, and the Oregon Department of Administrative Services (“Defendants”) resulting from their use of an incentive to encourage participation in an employer-provided wellness program. Like many employers, the Defendants adopted a voluntary wellness program that utilized a Health Risk Assessment (“HRA”) to identify employee health risk factors. Covered employees who did not participate in the program were assessed a fee of $20 to $35 per month. The lawsuit alleges that the wellness program is discriminatory based on a disability and violates the employees’ right to be free from searches and seizures by unlawfully compelling disclosure of medical information through penalizing employees who do not participate in the wellness program. (EpsteinBeckerGreen Blog July 16, 2012)
What are your rights when an employer presents you with a mandatory health risk assessment? At this point, it remains vague and confusing. Employers are moving forward with the mandatory assessments or risk higher health insurance costs. Here are some suggestions. I would request of the HR department, specifically, what the increase of cost would be. Is it a higher deductible? or coinsurance or gift card? I also suggest contacting the regional EEOC for guidance and if find out if your state has any specific legislation regarding this issue.
Until EEOC releases a firm opinion on violations of the ADA or the courts make a definitive decision, it is best to weigh financial and work related impact. It seems to be a violation of employee rights but only time and the courts will determine that.