New Mexico employers that offer or are considering offering a wellness program should be aware that on May 16th, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) published the final version of two rules that regulate employer-sponsored wellness programs. The rules provide much needed clarity on what has previously been an area filled with legal uncertainty. The rules, which will take effect in 2017, explain how employers can offer a wellness program that is in compliance with the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA). They apply to workplace wellness programs offered in conjunction with a health plan and stand-alone wellness programs.

The final ADA rule explains to what extent employers may use incentives or penalties to encourage employees to voluntarily participate in wellness programs that ask employees to respond to disability-related inquiries, such as health risk screening assessments or to undergo medical examinations. Employers may offer limited financial incentives to encourage employees to participate in a wellness program. Employers may not, however, require employee participation or take any adverse action against employees for non-participation or failure to achieve certain health outcomes.

The final GINA rule permits employers offering wellness programs to provide financial and other incentives in exchange for an employee’s spouse providing health information, such as answering questions on his or her current or past health status or taking a medical examination. The rule prohibits employers from offering financial incentives in exchange for information on the current or past health status of employees’ children or in exchange for certain genetic information, such as the results of genetic tests of an employee, an employee’s spouse, or an employee’s children.

The rules also include confidentiality provisions to protect employees and prevent misuse of  any information collected.