The rise of workplace wearable technology has opened new possibilities for employee efficiencies, safety, and health monitoring.

Collecting health-related workplace data, however, may subject employers to liability under nondiscrimination laws.

Yesterday, the Equal Employment Opportunity Commission (“EEOC”) published a fact sheet addressing potential concerns and pitfalls employers may run into when gathering and making employment related decisions based on health-related information.

Understanding Workplace Wearables

Wearable technologies, or “wearables,” are digital devices worn on the body that can track movement, collect biometric data, and monitor location. Employers have implemented these tools for a multitude of reasons, including tracking and predicting how long certain tasks take employees to promote efficiency. Wearables may also be programmed to recognize signs of fatigue, like head or body slumps, and notice improper form when lifting, which can be critical for workplace health and safety.

The EEOC’s new fact sheet mentions other workplace wearables, such as:

• Smart watches or rings tracking movement and physical/mental conditions;
• Environmental sensors warning of nearby hazards;
• Smart glasses and helmets measuring brain activity or detecting emotions;
• Exoskeletons providing physical support; and
• GPS devices tracking location.

Notably, the EEOC’s fact sheet does not address common workplace wearables where third parties are collecting data. In a world filled with gadgets, employees often wear their own fitness watches or other smart devices to work to track their steps and gather health information. Employers have even offered smart watches through benefit plans to encourage employees to live more active lifestyles. The EEOC’s fact sheet likely will apply to these wearables if employers require employees to share data they collect.

Employers providing employees with workplace wearables as part of wellness programs should also make sure to review and comply with the EEOC’s final rule on employer wellness programs.

Legal Implications of Workplace Wearables

While workplace wearables can promote workplace safety and efficiency, improperly using, collecting, and preserving employee data could subject employers to liability from federal discrimination laws such as Title I of the Americans with Disability Act (“ADA”) and Title VII of the Civil Rights Act of 1964.

Under the ADA, employers collecting health-related information from employees’ workplace wearables may be conducting “medical examinations” or making “disability-related inquiries.” The ADA strictly limits such actions to situations that are “job-related and consistent with business necessity” or otherwise permitted under specific circumstances. Accordingly, employers gathering health-related data from employees should confirm the collected data has a strong nexus to successful work performance.

In addition, employers should not use collected data to infer employees have certain medical conditions and use such knowledge to make adverse employment decisions. Before making employment decisions based on health data, employers should consider potential underlying medical conditions.

Employers should also ensure workplace wearables do not produce potentially inaccurate data that disproportionately affects certain racial groups or other protected characteristics. The EEOC’s fact sheet specifically refers to workplace wearables that gather less accurate results from darker skin tones. If employers use collected information from unreliable wearables and make employment decisions based on that data, then employers may violate anti-discrimination laws if those results disparately impact certain employees. While employers or their vendors are testing and improving workplace wearables technologies, they should make sure collected data is properly gathered and analyzed before relying on it to make important workplace decisions.

Key Considerations for Employers and Takeaways

1. Data Collection Limitations: Ensure that any health-related data collection via wearables complies with ADA requirements.
2. Data Privacy and Confidentiality: Maintain any medical or disability-related data collected from wearables in separate, confidential medical files.
3. Data Management and Safety: Preserve any medical- or disability-related data using safe and secure data management and storage techniques and equipment.
4. Nondiscriminatory Use of Data: Avoid using wearable-generated information to make employment decisions that could adversely affect employees based on protected characteristics.
5. Selective Use and Retaliation: Do not selectively use wearables to monitor employees based on protected characteristics or as retaliation for protected activities.
6. Reasonable Accommodations: Be prepared to make exceptions to wearable policies as reasonable accommodations for religious beliefs, disabilities, or pregnancy-related conditions.

While workplace wearable technology offers exciting possibilities, employers must navigate a complex legal landscape to ensure compliance with federal anti-discrimination employment laws. By understanding these legal considerations and implementing thoughtful policies, organizations can harness the benefits of wearables while protecting employee rights and avoiding potential legal pitfalls.