Both the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) impose significant restrictions on employee health risk assessments.

. . . GINA prohibits altogether a request for genetic information prior to or in connection with enrollment in a group health plan. A health risk assessment given in that circumstance needs to be carefully reviewed to make sure it requests no genetic information, and that any genetic information that may be disclosed falls within the “incidental disclosure” exception. After enrollment, GINA allows a request for genetic information (e.g., family medical history), but not for underwriting purposes. If a financial incentive (e.g., premium reduction or discount) or eligibility for additional benefits (e.g., eligibility for a disease management program) is provided in return for providing the genetic information, the request is considered to be for underwriting purposes and will violate GINA.

The ADA allows employers to make disability-related inquiries or to require medical examinations of employees only if they are job related and consistent with business necessity. As a result, it prohibits disability-related inquiries and medical examinations that are a precondition for enrollment in a group health plan or health reimbursement arrangement, [according to recent letters from the Equal Employment Opportunity Commission]. The ADA will allow disability-related inquiries and medical examinations as part of a voluntary wellness program -- but a “voluntary” program means the employee cannot be penalized for the failure to participate.

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