Last week, the Equal Employment Opportunity Commission (EEOC) released a fact sheet entitled, “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws.” “Wearables,” defined as electronic or digital devices that contain sensors and are worn to track body movement, collect biometric information and track location, and include such tools as fitness trackers and smart watches.
The EEOC fact sheet addresses issues that may arise when employers require employees to wear smart watches, rings, or helmets, for example, that track their movement and location and monitor their physical and emotional condition. In particular, the fact sheet discusses how federal employment discrimination laws apply when employers use wearables to collect and use this information, and their responsibility to provide reasonable accommodations in appropriate situations.
The Use of Wearables at Work
Boeing, Ford Motor Company, Hitachi, Frito-Lay, and certain healthcare employers utilize wearable technology, such as smart glasses, wristbands, and fitness trackers, to monitor employee performance, enhance safety, and improve operational efficiency.
For example, Ford uses wristbands to alert workers about proximity to equipment, and some healthcare providers use smart glasses to help employees gather patient data access during examinations.
Collecting Information Using Wearables
The Americans with Disabilities Act (ADA) allows employers to conduct “medical examinations” or make “disability-related inquiries” only in limited circumstances: (1) when required by a federal, safety-related law or regulation; (2) for certain employees in public safety positions; and (3) when the medical examination or inquiry is voluntary and part of an employee health program.
To remain ADA-compliant, employers who require employees to use wearables should ensure they do so only for purposes that are “job related and consistent with business necessity,” or permitted under one of the circumstances listed above.
Using Information Collected from Wearables
Even when the collection of medical information is permitted under the ADA, employers may not use that information based on protected characteristics such as race, color, religion, sex, or age. The EEOC fact sheet provides several examples of unlawful use of wearable-generated information, including using heart rate and temperature to infer that an employee is pregnant and then unilaterally placing the employee on unpaid leave, and firing an employee with an elevated heart rate based on an assumption that the employee suffers from a heart condition.
Reasonable Accommodation Related to Wearables
Employers also must comply with reasonable accommodation laws that may come into play with wearables. For example, if an employee’s disability or religious belief or practice precludes the employee from wearing certain electronic equipment, the employer may have to provide an exception.
A Few Tips for Employers
Practically speaking, it is always difficult for employers when the development of the law trails behind technological innovation. However, the EEOC’s fact sheet provides employers with important guidance in this new area, including reminding them to ensure the accuracy and validity of the data they collect from wearables, store it safely, and not use it to make employment decisions that violate applicable law.
Employers considering the use of wearables should consult with employment law counsel who understands the ramifications and applicable legal requirements.
