EEOC Press Release - June 8, 1993
U.S. Equal Employment Opportunity Commission

Title I of the ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against individuals with disabilities in employment.

The Guidance identifies four basic ADA requirements in the area of health insurance;

1) disability-based insurance distinctions are permitted only if the employer-provided health insurance plan is bona fide and if the distinctions are not being used as a subterfuge for purposes of evading the Act;

2) decisions about the employment of an individual with a disability cannot be motivated by concerns about the impact of the individual's disability on the employer's health plan;

3) employees with disabilities must be accorded equal access to whatever health insurance the employer provides to employees without disabilities; and

4) an employer cannot make an employment decision about any person, whether or not that person has a disability, because of concerns about the impact on the health plan of the disability of someone with whom that person has a relationship.

The enforcement guidance reiterates congressional report language and previous EEOC regulatory guidance that the ADA does not provide a "safe harbor" for health insurance plans that were adopted prior to its July 26, 1990 enactment. Subterfuge is to be determined regardless of the date an insurance or employer benefit plan was adopted.

In determining whether a specific term or provision of an employer-provided health insurance plan is in fact a disability-based distinction, EEOC investigators are instructed to determine whether the insurance term, provision, or condition singles out a particular disability, discrete group of disabilities, or disability in general. Also, whether it singles out a procedure or treatment of a particular disability or discrete group of disabilities (e.g. exclusion of a drug used only to treat AIDS) will be considered.

The enforcement guidance clarifies what employers must prove if the specific insurance term or provision is found to be a disability-based distinction. Because the employer has control of the risk assessment, actuarial, and/or claims data relied upon in adopting a disability-based distinction, the burden of proof should rest with the employer.

The employer must first prove that the health insurance plan is either a bona fide insurance plan that is not inconsistent with applicable state law, or that it is a bona fide self-insured plan. Then the employer must prove that the disability-based distinction is not being used as a subterfuge to evade the purposes of the Act.

An employer can prove that a disability-based distinction is not being used as a subterfuge in several ways. For example, if the employer is relying on actuarial data to justify the disability-based distinction, the evidence must include a detailed explanation of the rationale underlying the disability-based distinction, including the actuarial conclusions arrived at, the actuarial assumptions relied upon to reach those conclusions, and the factual data that supports the assumptions and/or conclusions.

Or, if the employer asserts that the disability-based distinction was necessary to prevent the occurrence of an unacceptable change in coverage or premiums, or to assure the fiscal soundness of the insurance plan, the evidence presented should include nondisability-based options for modifying the insurance plan that were considered and the reason(s) for the rejection of these options.

The interim enforcement guidance will remain in effect until superseded by more comprehensive guidance, subject to public comment, regarding the application of the ADA to a broad range of issues arising in the context of employer-provided health insurance.

In addition to the ADA, which prohibits job discrimination against individuals with disabilities EEOC enforces Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, prohibitions against discrimination affecting individuals with disabilities in the federal sector, and sections of the Civil Rights Act of 1991.