Wearable technology has become commonplace in society, as evidenced by the hundreds of millions of smartwatch users across the world. That trend extends to the workplace, and the U.S. Equal Employment Opportunity Commission (EEOC) recently released a fact sheet explaining how wearable technology can be implicated under federal discrimination laws.
Wearable technology is defined as digital devices that are worn on the body. Using sensors, these devices collect biometric and medical information. In recent years, wearables were primarily smartwatches but have expanded to smart rings, glasses, glucose monitors, helmets, and other devices. The EEOC fact sheet explains how federal equal employment opportunity (EEO) laws can apply to employers and wearables.
Employers Collecting Information
The first concern highlighted is when employers direct employees to use wearables to obtain health-related information. This may cause compliance issues under laws such as the Americans with Disabilities Act (ADA). For instance, using wearables to collect data on an employee's physical or mental conditions (e.g., blood pressure monitors or eye trackers) or conducting diagnostic testing (e.g., EEGs) may constitute "medical examinations" under the ADA. Similarly, requiring employees to provide health information in connection with wearable use may be considered "disability-related inquiries."
The ADA only allows medical examinations or disability-related inquiries when required by statute or regulation, the employee is in a public safety position, and the employee is voluntarily part of an employee health program that is reasonably designed to promote health and prevent disease. If one of these exceptions is not met, collecting such information from wearables may pose a compliance risk. Additionally, because the information collected from these devices may be considered medical information, it must be maintained in separate medical files and treated as confidential medical information.
How to Use Information from Wearables
If an employer collects information from wearables in a compliant manner, employers must still comply with EEO laws when using that information. EEO laws prohibit employment discrimination based on a protected characteristic: race, color, religion, sex (including gender, sexual orientation, and/or pregnancy, childbirth, or related medical conditions), national origin, age (40 or older), disability, or genetic information. If wearable-generated information is used to make employment decisions that have an adverse effect on employees because of a protected class they possess, employers could run into compliance issues. While this may be difficult to imagine, the EEOC fact sheet provided some helpful examples, including the following.
Additionally, if employers decide to use wearables, they should not selectively use them to monitor some employees based on protected characteristics or in retaliation against employees for engaging in protected activity.
Exceptions Apply
If an employer has a wearables policy, it may need to make an exception as a reasonable accommodation for religious belief, ADA, or under the Pregnant Workers Fairness Act, even if a wearable policy is permissible under the ADA. For example:
Summary
When employers are considering implementing a wearable policy, they should consider the following: