Key Takeaways

• Health-related data collected through wearables may qualify as a “medical examination” or “disability-related inquiry” under the Americans with Disabilities Act (ADA) and may only be permissible when job-related and consistent with business necessity.

• Employees must be fully informed about what data is collected, how it will be used, and who will have access, and employers must securely store and treat health and disability-related information confidentially under the ADA. Employers must not use wearable data in ways that adversely impact employees based on protected characteristics such as race, gender (including pregnancy, sexual orientation, and gender identity), religion, age (40 or older), or disability. For example, using health metrics to infer pregnancy or chronic illness and taking adverse employment actions is strictly prohibited.

• Employers must offer accommodations under the ADA and Title VII, such as alternative monitoring methods for employees who cannot or do not want to use wearables due to religious beliefs, disabilities, or pregnancy-related conditions.

Summary

The U.S. Equal Employment Opportunity Commission (EEOC) has released new guidance addressing the use of wearable technologies in the workplace. These devices, which range from fitness trackers to biometric monitors, offer employers innovative ways to enhance productivity and safety. However, the EEOC cautions that improper use of data collected through these technologies could lead to violations of federal employment discrimination laws. Employers and insurers must be proactive to mitigate risks.

What Employers Need to Know

While wearable technology promises to transform the workplace, its use can pose significant legal and operational risks if not managed properly. The EEOC’s guidance highlights the nuanced challenges wearable tech presents. The issuance of the EEOC fact sheet was triggered by the growing use of wearable technologies in workplaces and concerns about potential discrimination stemming from the data these devices collect. These technologies, including smartwatches, fitness trackers, augmented reality glasses, and biometric monitoring devices, are increasingly being used by employers to enhance productivity, improve workplace safety, and monitor employee health and performance. However, their usage raises critical questions about privacy, data accuracy, and potential bias.

There are a broad range of employers across many industries that commonly use or are exploring wearable technology, including:

1. High-Risk Work Environments:
   • Employers in manufacturing, construction, and healthcare, where wearables are used to monitor safety, fatigue, or exposure to hazardous conditions.
2. Corporate and Office Settings:
   • Employers use wearable tech to track productivity, health metrics, or stress levels to optimize workplace performance.
3. Retail and Service Industries:
   • Employers use wearables for time tracking, location monitoring, or customer interaction metrics.
4. Technology and Innovation Sectors:
   • Companies develop or heavily rely on wearable technologies for workplace integration.
5. Fitness and Health-Focused Companies:
   • Employers promote employee wellness programs that integrate wearables for tracking activity levels, sleep, or overall health.

By targeting a wide spectrum of industries in their guidance, the EEOC aimed to ensure that employers across different sectors understand the potential pitfalls and legal obligations associated with wearable technology. Of course, employees typically have to consent to their employer’s ability to access data collected from wearable devices. However, the consent process and the legal framework surrounding it can be more complex in practice, and this is one of the reasons the EEOC issued guidance. Below is an overview of how consent works and the potential issues involved:

1. Voluntary Programs:
   • Many employers introduce wearable technology through voluntary wellness programs. Employees typically sign a consent form agreeing to share certain data with their employer or a third-party administrator managing the program.
2. Informed Consent:
   • Consent must generally be informed—meaning employees must fully understand:
     • What data is being collected
     • How it will be used
     • Who will have access to it
     • How long it will be stored, and
     • Their rights to withdraw consent.
3. Mandatory Use:
   • In some industries (e.g., manufacturing, logistics, or healthcare), wearable tech may be required for safety or compliance reasons. In such cases, employers might justify the collection of data as part of a job-related necessity, which complicates the question of voluntary consent.

Consent in the context of wearable tech data collection presents multiple issues of its own, such as the following:

1. Pressure to Participate:

Even when participation is technically voluntary, employees might feel pressured to consent due to workplace culture or fear of retaliation, such as being seen as uncooperative or missing out on incentives.

2. Scope of Data Collection:

Employees may not fully understand the scope of the data being collected. For example, a fitness tracker might log heart rate, sleep patterns, and activity levels, but employees might not realize this could indirectly reveal sensitive information, such as pregnancy, disabilities, or mental health conditions.

3. Limited Control Over Data:

Once collected, employees may have little control over how their data is used, stored, or shared. For instance, data might be shared with insurance providers, third-party vendors, or even used in ways the employee did not explicitly approve.

4. Legal and Privacy Concerns:

Consent alone does not absolve an employer from complying with laws like:

• • ADA: Restricting collection of disability-related information.
  • GINA: Preventing collection of genetic data.
  • Title VII: Prohibiting discrimination based on collected data.

The Risk of Misuse and Bias

Wearable tech often collects sensitive data, such as health metrics or location information, which could lead to violations of laws like the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act if mishandled. The data collected by wearable devices, such as heart rate, activity level, or location tracking, may seem innocuous but could reveal sensitive information indirectly. For example:

• An elevated heart rate or irregular sleep patterns could suggest pregnancy or a medical condition.
• Reduced activity levels might lead to assumptions about an employee’s health, age, or disability.

Employers relying on such data for decision-making—whether consciously or unconsciously—risk running afoul of laws like the ADA, Title VII, and GINA. Additionally, inaccuracies in wearable technology disproportionately affect certain groups. For instance, biometric devices that fail to calibrate for darker skin tones or larger body sizes may produce skewed results, leading to discriminatory outcomes.

Impact on Workplace Relationships

The integration of wearables can also create employee morale issues if workers feel their privacy is compromised. Employees may perceive mandatory wearable programs as invasive or discriminatory, especially if the programs are not implemented transparently or equitably. This can increase the likelihood of grievances or even EEOC complaints.

Insurance Considerations

Insurers should note that claims related to wearable technology, such as allegations of discriminatory practices or privacy breaches, could lead to significant exposure. Employers in industries heavily reliant on wearables (e.g., healthcare, manufacturing, or construction) are particularly vulnerable to such claims.

What Should Employers Do Now?

1. Audit Data Collection Practices:
   Ensure that all data collected by wearable technologies is directly related to job performance and consistent with business necessity.
2. Choose Inclusive Technology:
   Work with vendors to ensure wearable devices provide accurate data across all demographics and are free from bias.
3. Develop Clear Policies:
   Establish written policies explaining:
   • What data will be collected and why
   • How data will be stored, used, and shared
   • Employees’ rights to decline participation without fear of retaliation
   • Employees’ rights to request accommodation
4. Educate Managers and Supervisors:
   Provide training on the risks of wearable technology misuse and how to handle sensitive information appropriately.
5. Engage Legal Counsel:
   Consult with legal counsel to proactively address potential risks and ensure compliance with federal employment laws.

Conclusion: Take Action Now

Wearable technology represents a new frontier in workplace innovation, but its use comes with legal and reputational risks. Employers and insurers must act now to align their practices with the EEOC’s guidance, ensuring compliance and fostering trust with employees. By taking proactive measures, businesses can unlock the benefits of wearable tech without compromising employee rights or exposing themselves to liability.

If you have questions about wearable technology policies or need assistance implementing a compliant program, our team is here to help, please contact:

• Danielle N. Malaty
• Caroline J. Berdzik
• Scott R. Green
• Or any other member of the Employment and Labor team