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 EEOC Guidance on Wearable Technologies 

The EEOC recently published a fact sheet pertaining to the use of wearable technologies. Wearable technologies, or “wearables,” are digital devices like rings, fitness trackers, watches, glasses or helmets that are embedded with sensors and worn on the body and that may track bodily movements, collect biometric information and/or track location. While wearables may offer health benefits and increase productivity and safety, employers should be aware of the legal risks they bring to the workplace.

Collecting Information from Wearables

Employers that require the use of wearables to collect information about an employee’s physical or mental conditions may be conducting “disability-related inquiries” or “medical examinations” for the purposes of the ADA. A “disability-related inquiry” is a question or series of questions likely to elicit information about a disability. A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. Under the ADA, employers generally may only conduct “disability-related inquiries” or “medical examinations” in limited circumstances such as when an employee’s medical condition poses a significant risk that cannot be reduced by a reasonable accommodation or when the employee participates in the inquiry or examination voluntarily and as part of an employee health program reasonably designed to promote health.

If permitted under the ADA to collect medical or disability-related data from wearables, employers must keep the collected information in separate medical files and treat it as confidential medical information unless an exception applies.

Using Information from Wearables

Even if collecting information from wearables is permitted under the ADA, employers must be sure that the information gathered is not used to discriminate against or have a disparate impact on, employees with disabilities or on the basis of race, color, sex, national origin or religion. For example, nondiscrimination requirements may be violated if an employer uses information collected from wearables to:

• Infer that an employee is pregnant and then subsequently fire that employee or put her on unpaid leave against her will
• Make adverse employment decisions against workers of a particular race for which wearable technology produces less accurate results
• Fire an employee based on elevated heart rate when the elevated heart rate results from a disability
• Infer or predict menopause and then subsequently refuse to promote the employee because of age, sex, or disability

Employers may not retaliate against employees who engage in protected activity by requiring them to use wearables. If an employer requires employees to use wearable technologies, employees may be entitled to an accommodation under Title VII, the ADA or the Pregnant Workers Fairness Act.

Takeaways

Employers that require the use of wearable technologies should review their practices to ensure they are permitted to collect information without violating the ADA. If permitted, the employer should ensure the information collected from wearables is used for purposes that do not violate any EEO law and that employees have consented to the collection and are fully informed about what information is being collected and how it will be used.