In today’s rapidly evolving technological landscape, smartwatches and other wearable technology devices have progressed past being a great holiday gift for your family member with the perennial New Year’s resolution to hit the gym and are increasingly prevalent in the workplace. These devices, ranging from smartwatches to powered gloves, can enhance employee productivity and improve workplace safety. Still, the use of wearable technologies raises important legal considerations under federal equal employment opportunity (EEO) laws. To address some of these considerations, the U.S. Equal Employment Opportunity Commission (EEOC) has gifted employers with a fact sheet explaining how federal equal employment opportunity laws may apply to employers’ use of wearable technologies.

Wearable technologies (“wearables”) are digital devices embedded with sensors that can track bodily movements, collect health-related information, monitor environmental concerns and track location. Common examples include smartwatches and “smart rings” that collect information such as heart rate, the number of steps taken each day and temperature; wearables that warn the wearer of nearby hazards or provide physical support, such as powered gloves and exoskeletons; and smart glasses and helmets that can measure brain activity and detect emotions.

Employers using wearables to collect health-related information about an employee or using wearables that require employees to provide health information in connection with using wearables may pose compliance risks under the Americans with Disabilities Act (ADA), which limits an employer’s ability to conduct medical examinations or make disability-related inquiries to situations when it is job related and consistent with business necessity. According to the EEOC, collecting health-related information about an employee using wearables may be a “medical examination” under the ADA, and if an employer collects medical or disability-related data from wearable devices, it must keep the data in separate medical files and treat it as confidential. However, simply collecting the data is not the only compliance risk that wearables may pose. An employer using wearable-generated information to make employment decisions could implicate EEO laws. The fact sheet also notes that even if the use of wearables complies with the ADA’s limitations on collecting medical information, an employer may have to make an exception to a wearables policy as a reasonable accommodation under the ADA, Title VII or the Pregnant Workers Fairness Act.

When an employer uses information collected by wearables, it must comply with the nondiscrimination requirements of EEO laws that prohibit discrimination because of protected characteristics, including race, color, national origin, religion, sex (including pregnancy), disability, age and genetic information. For example, an employer could violate EEO laws by using wearable-generated information about an employee’s heart rate and temperature to infer that the employee is pregnant and then, as a result, putting the employee on unpaid leave against her will. EEO laws would also prohibit, for example, an employer selectively using wearables to monitor a group of employees based on a protected characteristic or in retaliation for an employee engaging in protected activity. In addition, an employer using wearables-generated data to identify an employee’s protected characteristics could independently violate the ADA’s requirement to keep medical information confidential.

Employers using wearable technologies also need to ensure compliance with state laws that regulate how private companies collect, store or share an individual’s biometric data, such as the Illinois Biometric Information Privacy Act. Violations of these state laws can lead to serious penalties. For example, under Texas state law, an employer who misuses an individual’s biometric data can be subject to a civil penalty up to $25,000 for each violation.

The fact sheet wraps up by providing considerations for employers who wish to integrate a compliant wearables policy effectively. Before implementing a wearables policy, employers should assess what data the wearable or wearables will collect, including their accuracy and validity across different protected bases, and establish the job-related purpose for using wearables. Employers should also determine how those data are stored and accessed to ensure health-related information remains confidential. Finally, employers should know whether and how data will be used in employment-related decision making. It is essential for employers to proactively consider potential legal considerations before implementing wearables policies, and employers may consider consulting with legal counsel to ensure their policies and practices comply with the law.