HRAs have gained in popularity in the last few years as employers have conditioned eligibility in their group health plans on the completion of HRAs. Health care professionals know that knowledge of a potential medical condition is the first step in preventative wellness.
President Barack Obama, in fact, understands this knowledge is an advantage. In a recent statement, he observes that "[a]s a result of many successful programs at businesses across the country, workers have become more engaged in their own health care, productivity is increasing, absenteeism is dropping and employers are passing some of their health care savings to their workers."
These tools have proven so successful in the fight against rising health care costs that employers of all sizes across the country have conditioned participation in their group health plans on the completion of an HRA. In the usual case, the results are not typically shared with the employer, except in the de-identified aggregate, which helps the employer and their brokers focus on overall design changes to make sure their plans are meeting the employees' needs.
Understanding the value of HRAs to employers, the U.S. Department of Labor, the federal agency with jurisdiction over potential discrimination issues in employer-sponsored group health plans, has unequivocally endorsed the use of HRAs, as long as the results are not used in any way to impair an individual's eligibility or benefits, or to increase the cost of coverage.
Apparently, the EEOC doesn't listen to statements from the White House and is unfamiliar with the strides being made across the country. In a recently released letter, the EEOC found that a county's conditioning of eligibility for its health plan on the completion of an HRA violates the Americans with Disabilities Act. County employees were required to fill out a short health-related questionnaire, take a blood pressure test and give a blood sample for screening. As is typical, the results were given directly to the employee; the county received only aggregate results. Employees who refused or failed to participate in the HRA (and dependents) were ineligible for coverage under the county's group health plan.
Narrowly focusing on its own rules and ignoring the practical fact that employers simply do not see this information, the EEOC noted that the ADA limits "medical examinations" of employees to those that are job-related and consistent with business necessity. In keeping with its past rulings, the EEOC in this letter applies a per se presumption against the collection of information through HRAs, without considering that the information collected is never reviewed or used by employers. The ADA prohibits discrimination in terms, conditions and privileges of employment. It's difficult to see how the intent of the statute is advanced with this opinion, since the eligibility requirement applies to all employees irrespective of any disability, and treats individuals with disabilities no differently than it treats all other employees.
The EEOC letter has no real legal significance for other employers and applies only to the employer who requested it. However, it does provide employers with a sense of the EEOC's position. Hopefully, the EEOC will engage in formal rulemaking on this important issue, which will give the agency the opportunity to carefully consider HRAs in the context of their tremendous utility relative to their insignificant and likely non-existent risk of real harm to employees under the ADA. Formal rulemaking will also provide interested stakeholders the opportunity to comment on the EEOC's position. Perhaps then the EEOC will make a more informed decision that recognizes, one, the absence of any real concern under the ADA and the practical lack of the advancement of the statute with such a rule and, two, the presence of greater value to employees in general who benefit from stabilized or even decreased health care costs and better health.
Marathas is an employee benefits and executive compensation partner at Proskauer Rose LLP. The views expressed are his own and do not reflect the view of the firm, its partners or clients.
