/>iJust after Apple was sued for using surveillance in technology, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers regarding employee use of wearable technology. The 21st Century has seen numerous technological advances with the impressive ability to track the person wearing the device's activities and monitor their sleep schedule, stress levels, heart rate, and blood pressure. Some of the technology can even perform diagnostic testing, such as an electroencephalogram.
Employers who require employees to wear technology that tracks physical and mental conditions may be conducting “medical examinations” under the Americans with Disabilities Act (ADA). Specifically, the EEOC indicates the “ADA strictly limits disability-related inquiries or medical examinations for all employees, not just those with disabilities, to situations when it is ‘job related and consistent with business necessity’ for a specific employee, or otherwise permitted under the ADA, 42 U.S.C. § 12112(d)(4)(A).”
The ADA provides that a medical examination or a disability-related inquiry is “job related and consistent with business necessity” when an employee has a medical condition that poses a significant safety risk that cannot be reduced by means of providing a reasonable accommodation.
Purely by way of example, a disability-related inquiry or medical examination is only permitted when required by federal or state safety-related laws or regulations, employees in certain positions (i.e., police officers and firefighters), and when the inquiry or examination is part of an employee health program designed to promote health or prevent disease. If the inquiry or examination is outside these statutorily authorized purposes, then an employer risks being noncompliant with the ADA. Moreover, when an employer collects the data described above, employers are required to maintain those records separately and treat that data as confidential medical information.
Notably, the EEOC says employers may also be required to make an exception to a wearable technology policy as a reasonable accommodation under Title VII, the ADA, or the Pregnant Workers Fairness Act, even if the ADA allowed an employer to collect medical information from wearable technology.
Based on the EEOC's guidance, employers who are contemplating implementing wearable technology policies, or who already have them in place, should ensure they follow applicable laws and policies.
Employers using wearables to collect information about an employee’s physical or mental conditions (such as blood pressure monitors or eye trackers) or to do diagnostic testing (such as EEGs) may be conducting "medical examinations" under the Americans with Disabilities Act (ADA).
