Wearable technologies, including smart watches, rings and other digital devices designed to track the wearer’s bodily movements and location, as well as collect biometric information and other data in real time, are changing the landscape of the workplace. Workplaces have seen an increased use in these wearables, leading to the enactment of new laws and regulatory guidance from several states and administrative agencies surrounding the use of such technologies.
Among these is a fact sheet issued by the U.S. Equal Employment Opportunity Commission (“EEOC”) titled “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws” (found here) which provides guidance on how the federal equal employment opportunity laws may apply to employers’ use of wearable devices where such wearable devises may pose compliance issues for employers and their agents. Generally speaking, it is clear that the fact sheet indicates a growing concern over the use of employee-monitoring technologies.
One of the biggest risks is employee privacy. Several state and federal laws, such as the Americans with Disabilities Act (ADA) and state biometric information laws, protect certain information given by employees to their employers. For instance, the ADA limits disability-related inquiries or medical examinations for all employees, not just those with disabilities, to situations when it is “job related and consistent with business necessity” for a specific employee or otherwise permitted under the ADA. Disability-related inquiries or medical examinations are allowed in a few limited circumstances, which have specific requirements, but if an employer uses wearables to conduct disability-related inquiries or medical examinations outside one of such exceptions (including when required by federal, safety-related laws or regulation; for certain employees in positions affecting public safety; and/or if the inquiry or examination is voluntary and part of an employee health program), then those inquiries or examinations may pose compliance risks.
The EEOC’s guidance provides that wearable technologies may constitute “medical examinations” and/or “disability-related inquiries” in violation of the ADA. To determine whether a test or procedure is a medical examination under the ADA, the EEOC will consider several factors, including whether the test measures an employee’s performance, whether the test is normally given in a medical setting, and whether medical equipment is used. Wearable technologies may be deemed to be conducting medical examinations when they track and collect information about an employee’s physical or mental condition, such as blood pressure monitors and eye trackers, and they may also be deemed to be conducting medical examinations where they are conducting diagnostic testing, such as EEGs.
Other risks include employee health, data security, and data interpretation. For instance, if an employer collects medical or disability-related data from wearable devices, the ADA requires employers to maintain that data in separate medical files and treat it confidential medical information with limited exceptions. The EEOC’s guidance also states that employers must abide by equal opportunity laws when using information collected by wearables and cannot use such information to discriminate against employees based on a protected characteristic, which includes (but is not limited to) race, color, religion, sex, national origin, age, disability, and genetic information. For example, according to the EEOC, employers may violate non-discrimination laws by using data from wearable technologies to infer that an employee is pregnant and then taking an adverse action against the employee as a result.
The EEOC guidance also provides that an employer also may need to make an exception to a wearables policy as a reasonable accommodation under Title VII (such as religious belief, practice or observance), the ADA (for a disability) or the Pregnant Workers Fairness Act (for pregnant employees, childbirth, or related medical conditions), even if the ADA were to allow the employer to use wearables to collect medical information.
It is important to note that this guidance was issued at the end of Biden’s Administration, and it remains to be seen whether the EEOC under the Trump Administration will rescind or amend this guidance. In the meantime, employers who used wearable technologies in the workplace should review and ensure that the type of information collected by such wearable technologies is compliant under the ADA, evaluate the accuracy and validity of the information before making any adverse employment decision based on that information while ensuring that such information is not used to discriminate against employees on the basis of a protected characteristic.
If you have any questions about the subject of this article and its implications for your business, please contact Forework.