by Employers have always looked to technological advances for tools to monitor and improve productivity. As technology has become more personal, employers are using tools that monitor personal kinds of employee conduct to provide information that might improve productivity. This individual class of technology is often referred to as ‘wearables.’ Wearables include what the Equal Employment Opportunity Commission (EEOC) describes as “digital devices embedded with sensors and worn on the body that may keep track of bodily movements, collect biometric information, and/or track location.”
Federal Guidance on Legal Risks
The EEOC recently published a fact sheet identifying ways federal equal employment opportunity (EEO) laws may apply to an employer mandate that employees use wearable devices as a monitoring tool. https://www.eeoc.gov/wearables-workplace-using-wearable-technologies-under-federal-employment-discrimination-laws.
Collection and Use of Medical Information: The agency warns that any mandated use of wearable devices to collect information about an employee’s medical information (such as blood pressure readings) may violate the Americans with Disabilities Act (ADA). The EEOC points out that these wearables could be viewed as conducting “medical examinations” or making “disability-related inquiries,” neither of which are permitted under the ADA unless the employer can prove that they are related to the specific job of the employee, and that the exam or inquiry is consistent with a business necessity. The fact sheet states that employers that mandate all employees use company-issued wearables that collect information such as vital signs without a business need may violate the ADA.
The EEOC warns that improperly using collected information, such as taking adverse action against an employee based on the information, may violate other EEO laws such as Title VII of the Civil Rights Act of 1964 or the Genetic Information Nondiscrimination Act due to disparate impact discrimination or other reasons. Even if the wearable technology complies with the ADA and other EEO laws, employers must still ensure that they comply with the ADA and other laws to offer and provide reasonable accommodations for religion, pregnancy, or disability.
State Law Challenges to Wearables (Biometric Information, Location Tracking, Surveillance)
Illinois and Texas have had statutes that regulate the collection and handling of biometric information by private companies for several years. Colorado recently enacted a statute requiring employee consent and other steps before employers can collect employee biometric information. Other states have passed laws requiring security safeguards and data breach notifications for collection or use of biometric data.
Hawaii and New Jersey recently passed statutes requiring consent or notice for some kinds of workforce location-tracking. Other states have laws addressing or limiting some kinds of location tracking that could be applied to employment situations.
Some states have more general surveillance laws that could be applied to the employment use of wearables. For example, New York, Connecticut, and Delaware have laws requiring written notice for many forms of surveillance. Employers should be aware that a wearable used by an employee may meet laws covering the employee but be in violation of laws protecting non-employees when the wearable is also collecting the words or actions of non-employees.
Concerns over possible federal and state law violations should be part of the due diligence process when an employer is considering using wearables or other devices to monitor employee conduct. As wearables’ uses and technological capabilities expand, the laws applicable to their use may also expand. Regular review of new laws regarding workplace use of wearable devices is recommended.
