New England Biz Law Update
As wearable technology has moved from the gym, it should come as no surprise that it is now in the workplace. But it is not the wild, wild west, and employers should not dive into wearable technology with reckless abandon, especially considering the new guidance from the U.S. Equal Employment Opportunity Commission (EEOC).
From smart watches and rings to GPS trackers and environmental sensors — and even exoskeletons — wearables collect a wealth of data that could potentially expose employers to legal risks under employment discrimination laws. Here are the top five takeaways:
Don’t assume wearable devices are just fitness tools
Wearables that gather information about an employee’s physical or mental condition, such as heart rate or fatigue levels, may be considered a medical examination or a disability-related inquiry under the Americans with Disabilities Act (ADA). An employer can conduct such inquiries only if they are job-related and consistent with business necessity or fall within narrow exceptions. Employers should review their wearable device policies to ensure that any health-related data collection complies with ADA rules.
Medical data must stay confidential
Treat medical or disability-related data collected from wearable devices as confidential medical information and keep it separate from regular personnel files. Employers should implement secure data storage practices for wearable-generated information. Now is the time to review employee privacy policies to ensure compliance with ADA confidentiality requirements.
Using wearable data for employment decisions can be risky
Don’t let wearable data lead to biased or discriminatory employment actions. The EEOC’s guidance notes that using wearable data to make employment decisions — such as firing an employee based on health metrics or fatigue levels — can lead to discrimination claims. For example, an employer using a wearable to monitor employees’ stress levels might inadvertently discriminate if the device is less accurate for certain racial groups. Thus, employers must ensure that wearable data isn’t used as the sole basis for employment decisions.
You may have to provide reasonable accommodation
Be prepared to provide reasonable accommodation if employees object to wearables for medical, religious, or pregnancy-related reasons. Even if the use of a wearable device is lawful under the ADA, you may still need to make accommodations under federal laws, including Title VII and the Pregnant Workers Fairness Act. This could mean allowing an employee to opt out of wearing a device or offering an alternative. Employers need to flag this issue so supervisors know how to handle such requests appropriately.
Selective monitoring can lead to discrimination claims
Don’t apply wearable policies unevenly — disparate treatment can trigger legal liability. Employers that selectively require certain employees to wear devices based on protected characteristics, such as national origin or age, may face discrimination claims. Similarly, increasing wearable monitoring on employees who assert their workplace rights could be considered retaliation.
In the evolving landscape of workplace technology, wearable devices offer valuable insights but also introduce complex legal considerations. The EEOC’s guidance underscores the importance of ensuring these technologies comply with anti-discrimination laws. Employers must carefully assess how they collect, store, and use wearable data, ensuring compliance with biometric, workplace surveillance, and privacy laws. As wearables become more prevalent in the workplace, companies should proactively implement policies that balance innovation with employee rights, privacy, and legal compliance.
Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law.
