As wearable technology becomes increasingly prevalent in the workplace, the Equal Employment Opportunity Commission (EEOC) recently released a fact sheet, Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws, which provides essential guidance for employers. This resource highlights the need for compliance with laws such as the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and Title VII of the Civil Rights Act.
For more information on the EEOC’s new guidance and its potential impact on your organization, or employment compliance, please contact our Managing Counsel, Richard Liu, at contact@consultils.com.
Here are the key considerations for employers and steps to help mitigate legal risks.
1. ADA Compliance and Wearables
Wearables that collect health-related data, such as heart rate or stress levels, may qualify as medical examinations or disability-related inquiries under the ADA. Such inquiries are tightly regulated and only permissible when they are job-related and consistent with business necessity.
What Employers Should Do:
Evaluate whether wearable use is essential for specific roles, especially in safety-critical positions.
Limit the collection of health-related data to situations where it is strictly necessary and legally compliant.
2. Confidentiality of Collected Data
Medical or disability-related data gathered through wearable technology must be kept confidential under the ADA. This information should be stored separately from personnel records and accessed only by authorized personnel with a legitimate need.
What Employers Should Do:
Establish robust protocols for secure storage and access control.
Regularly review data handling policies to ensure compliance with ADA confidentiality requirements.
3. Preventing Discrimination in Employment Decisions
Wearable data should not be used as the sole basis for employment decisions, such as hiring, promotions, or disciplinary actions. The EEOC warns that wearables might produce inaccurate or biased data, particularly for certain demographics, such as individuals with darker skin tones or older employees.
What Employers Should Do:
Conduct audits to identify potential biases in the data generated by wearable devices.
Use wearable data as one of many factors in decision-making, ensuring it is corroborated with other objective evidence.
4. Providing Reasonable Accommodations
Employers must accommodate employees who cannot use wearable devices due to medical, pregnancy-related, or religious reasons under the ADA, PWFA, or Title VII. Accommodations could include exempting employees from wearing the device or providing alternatives.
What Employers Should Do:
Develop clear procedures for employees to request accommodations related to wearable use.
Train supervisors to recognize and address accommodation requests appropriately.
5. Consistency in Policy Application
Inconsistent implementation of wearable policies can lead to claims of discrimination or retaliation. Employers must ensure policies are applied uniformly to all employees, regardless of characteristics such as race, age, or gender.
What Employers Should Do:
Apply wearable policies uniformly across all employees to avoid disparate treatment.
Monitor compliance with policies to ensure fairness and prevent retaliation claims.
6. Ensuring Device Accuracy and Validity
Not all wearable devices are designed equally. Some may produce less reliable data for certain groups, potentially resulting in biased or inaccurate conclusions about employee performance or well-being.
What Employers Should Do:
Vet wearable devices to ensure they provide accurate and reliable data for all demographics.
Avoid making critical decisions based solely on data from unvalidated devices.
7. Privacy Laws Beyond the EEOC
In addition to compliance with federal employment laws, wearable technology may trigger obligations under state and local privacy laws, such as the Illinois Biometric Information Privacy Act (BIPA) or workplace surveillance statutes. These laws often require notice, consent, and specific data handling practices.
What Employers Should Do:
Identify the data collected by wearables and ensure compliance with applicable privacy laws.
Secure employee consent when required and review contracts with third-party vendors to protect data security.
Conclusion
Wearable technology offers significant workplace benefits but introduces legal challenges that employers must navigate carefully. By aligning wearable policies with federal and state laws, employers can leverage these tools responsibly while minimizing risks.
For more information on the EEOC’s new guidance and its potential impact on your organization, or employment compliance, please contact our Managing Counsel, Richard Liu, at contact@consultils.com.
Disclaimer: The materials provided on this website are for general informational purposes only and do not, and are not intended to, constitute legal advice. You should not act or refrain from acting based on any information provided here. Please consult with your own legal counsel regarding your specific situation and legal questions.
Richard Liu, Esq. is the Managing Counsel of ILS. He serves clients as a management-side defense lawyer specializing in employment and business litigation. Richard is also an expert on litigation prevention and compliance. He regularly advises Fortune 500 companies and startups on employment, labor, and commercial matters.
Email: contact@consultils.com | Phone: 626-344-8949
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