EEOC Weighs In On Wearables

The Equal Employment Opportunity Commission (EEOC) addressed the potential for discrimination with regard to wearable technology in a new fact sheet, “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws.”

Wearables—defined 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”—are increasingly used in the workplace, the agency said.

Employees can now be fitted with smart watches or rings that track their activities. Examples include environmental or proximity sensors that warn wearers of nearby hazards, smart glasses or helmets that can measure electrical activity of the brain or detect emotions and exoskeletons and other aids that can provide physical support and reduce fatigue.

While these devices can provide benefits to employees and employers alike, “directing employees to use wearable devices in order to obtain health-related information may pose compliance issues for employers” with federal equal employment opportunity (EEO) laws, the EEOC said.

Employers using wearables to collect information about an employee’s physical or mental conditions may be conducting “medical examinations” under the Americans with Disabilities Act (ADA) or making “disability-related inquiries” under the ADA if they direct employees to provide health information in connection with using wearables.

Disability-related inquiries or medical examinations are allowed in a few limited circumstances, the EEOC explained, which have specific requirements, including use when required by a federal, safety-related law or regulation, for certain employees in positions affecting public safety, and if the devices are voluntary and part of an employee health program.

“If an employer uses wearables to conduct disability-related inquiries or medical examinations outside one of these exceptions to the ADA prohibition, then those inquiries or examinations may pose compliance risks,” according to the fact sheet. In addition, “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 as confidential medical information with limited exceptions.”

Even if the ADA were to permit the collection of information from wearables, employers must comply with the nondiscrimination requirements of all the EEO laws, the agency noted.

The EEOC provided examples of potential problems, including firing an employee based on an elevated heart rate when the elevated heart rate results from a heart condition, analyzing heart rate variability and skin temperature to infer or predict menopause and then refusing to promote the employee because of sex, age and/or disability or relying on data from wearable technology that produces less accurate results for individuals with dark skin to make adverse employment decisions against those workers.

In addition, employers may not selectively use wearables to monitor some employees based on a protected characteristic or in retaliation for an employee engaging in protected activity (such as increasing surveillance or scrutiny of employees who assert their rights in order to retaliate against them for engaging in protected EEO activity, without similarly monitoring other workers).

An employer may also need to make an exception to a wearables policy as a reasonable accommodation under Title VII, the ADA or the Pregnant Workers Fairness Act, the agency said.

To read the EEOC’s Fact Sheet, click .

Why it matters: The EEOC provided three pointers for employers when considering the use of wearable technology in the workplace. First, employers should think about what data the wearables collect, including their accuracy and validity across different protected bases; how the data is stored should also be considered. Second, employers should consider whether and how the data is used in employment-related decision making, including whether their use impacts employees of different protected bases differently.