QUESTION: We learned in the interview process that a top job candidate’s child has a serious disability. Our major medical plan covers employees and their dependents, and we are concerned that the child’s condition will substantially increase costs under the plan. Is it permissible under the Americans with Disabilities Act (ADA) and other laws to condition a job offer on not enrolling the child in the plan?
ANSWER: The action you describe likely violates the ADA’s association provision. You are probably familiar with the ADA provisions that prohibit an employer from discriminating against a qualified individual with a disability in “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” But the ADA also prohibits discrimination against employees and job applicants because of their relationship or association with another individual who has a disability. In particular, the ADA expressly provides that the prohibition against discrimination encompasses excluding or otherwise denying equal jobs or benefits because of the known disability of an individual with whom the employee or job applicant is known to have a relationship or association. This association provision prohibits employers from denying an employee dependent health coverage because the employee’s dependent has a disability when dependent coverage is generally available to other employees.
EEOC guidance regarding the association provision includes examples relevant to your situation (see our Checkpoint article). In one example, an employer that offers health insurance to its employees’ dependents determines that providing coverage to a job applicant’s spouse will increase health insurance costs because the spouse has a disability. According to the guidance, an ADA violation will occur if, based on the increased costs, the employer offers the applicant the job but without the benefit of dependent health insurance, or decides not to hire the applicant at all.
This course of action also raises concerns under other laws, including HIPAA’s nondiscrimination provisions, which prohibit group health plans and insurers from discriminating with regard to eligibility or premium contributions based on health factors. For more information, see EBIA’s Group Health Plan Mandates manual at Section XX.H (“ADA: Discrimination Based on Relationship or Association”); see also EBIA’s HIPAA Portability, Privacy & Security manual at Section XI.C (“Nondiscrimination Rules for Eligibility and Benefits”).
Contributing Editors: EBIA Staff.