New guidance from the Equal Employment Opportunity Commission (EEOC) cautions employers that directing employees to use wearable devices in the workplace may violate the Americans with Disabilities Act (ADA) and other federal antidiscrimination laws.
Wearable technologies — digital devices embedded with sensors that may track body movements, collect biometric information or track location — include:
- Smart watches or rings that track activity and monitor workers’ physical or mental condition.
- Environmental or proximity sensors that warn workers of nearby hazards.
- Smart glasses and helmets that can measure electrical activity of the brain or detect emotions.
- Exoskeletons and other aids that provide physical support and reduce fatigue.
- GPS devices that track location.
According to the EEOC, using these devices to collect information about an employee’s physical or mental conditions may qualify as a medical examination or a disability-related inquiry, both of which the ADA strictly limits. Medical examinations and disability-related inquiries are permissible only when they are job-related and consistent with business necessity, or in certain other limited situations. Outside of these permitted uses, using wearables to collect employee information may violate the ADA.
Data collection and storage is another concern. Employers must maintain any medical or disability-related information – including information generated by wearables – in files that are separate from personnel files and treat it as confidential medical information.
Employers can also run afoul of the ADA and other EEO laws by:
- Using wearable-generated information to make employment decisions that harm employees on the basis of a protected characteristic such as race, sex (including pregnancy, sexual orientation and gender identity), religion, national origin, age, disability or genetic information;
- Selectively using wearables to monitor only employees with certain protected characteristics or in retaliation for protected activity;
- Using data from wearables to identify an employee’s protected characteristic;
- Using wearable-generated information for employment decisions that disproportionately harm individuals with certain protected characteristics; or
- Refusing to grant an exception to a wearable policy as a form of reasonable accommodation for religion, pregnancy or disability.
The EEOC advises employers using wearables in the workplace to carefully consider:
- What data the devices collect and their accuracy and validity.
- How the data are stored.
- Whether and how the information is used in employment decisions, including whether they adversely impact employees with certain protected characteristics.
