Just days before Christmas, the Equal Employment Opportunity Commission (EEOC) issued a warning to employers regarding situations in which they require employees to use wearables in the workplace in circumstances where that requirement could be interpreted as breaking federal civil rights and disability laws.
“Equal employment opportunity (EEO) laws may apply to employers’ use of wearable devices,” the commission’s Dec. 19, 2024, fact sheet warns. “Directing employees to use wearable devices in order to obtain health-related information may pose EEO compliance issues for employers, their agents and other EEO-covered entities.”
Although many of these wearables are not new, the commission’s pointed and detailed warning is. “Based on the EEOC’s guidance, employers who are contemplating implementing wearable technology policies, or who already have them in place, should ensure they follow applicable laws and policies,” says attorney Cody Woods od the Barnes & Thornburg law firm.
The commission defines wearable technologies as digital devices embedded with sensors and worn on the body that may keep track of bodily movements, collect biometric information, and/or track location. “Wearables are increasingly used in modern workplaces,” the EEOC observes.
The fact sheet points to situations where employees have been fitted with smart watches or rings that track their activities and monitor their physical or mental condition in the workplace, along with environmental or proximity sensors that warn wearers of nearby hazards.
EEOC also cites such examples as smart glasses and smart helmets that can measure electrical activity of the brain (electroencephalogram or EEG testing) or detect emotions; exoskeletons and other aids that provide physical support and reduce fatigue; global positioning system (GPS) devices that track location; and various other devices.
In what ways would an employer risk violating civil rights laws when they are deploying these devices? Let us count the ways: Using wearables to collect information about an employee’s physical or mental conditions (such as blood pressure monitors or eye trackers) or to do diagnostic testing (such as EEGs) may be conducting “medical examinations” under the Americans with Disabilities Act (ADA), according to the EEOC.
Employers also may be seen as making inappropriate “disability-related inquiries” under the ADA if they are found to have directed employees to provide health information (such as information about prescription drug use or a disability) in connection with using wearables.
The ADA strictly limits disability-related inquiries or medical examinations for all employees, not just those with disabilities, to situations when it is “job related and consistent with business necessity” for a specific employee, or otherwise permitted under the ADA, the EEOC says.
“Job related and consistent with business necessity may include situations where an employer individually assesses if an employee with a medical condition poses a significant safety risk that cannot be reduced by reasonable accommodation,” it adds.
What to Watch Out For
EEOC asserts that the relevance of this type of individualized assessment—called a “direct threat” analysis—to the use of wearables may be relatively limited. This applies when their use may be required by federal, safety-related laws or regulations; are worn by public safety officers, like the police and firefighters; and if they are voluntary and part of an employee health program designed to promote health or prevent disease.
Additional examples cited by the commission for how and where employers can run afoul of civil rights laws include:
• Using heart rate, fatigue level, and/or temperature information to decide an employee is pregnant, and then firing the employee or putting her on unpaid leave against her will.
• Relying on data from wearable technology producing less accurate results for individuals with dark skin (race or color) to make adverse employment decisions.
• Firing an employee based on an elevated heart rate when the elevated heart rate results from a heart condition (disability).
• Tracking an employee during their lunch break when the employee is taking a parent to a dialysis center, and then inquiring about the purpose for the employee’s visit to the center, in a way that elicits genetic information, which includes family medical history.
• Analyzing heart rate variability and skin temperature to infer or predict menopause, and then refusing to promote the employee because of sex, age and/or disability.
The EEOC also states that employers may be required to make an exception to a wearable technology policy to serve as a reasonable accommodation under the ADA or the Pregnant Workers Fairness Act, even in some cases where the ADA allows an employer to collect medical information from wearable technology.
In addition, the commission holds that in some cases where an employer mandates the use of a wearable device for reasons that are in compliance with the ADA’s limitations on collecting medical information, they still may need to make an exception or provide an alternative as a reasonable accommodation based on whether an individual employee is pregnant or has a disability.
The fact sheet serves as yet another reminder to employers that existing law applies to new and advancing technologies, explain attorneys Taylor Iaculla, Yoon Woo-Nam and Andrew Scroggins of the Seyfarth Shaw law firm.
“It is not enough that the devices have a legitimate purpose on the jobsite, even to preserve individual or overall workplace safety. Employers are responsible for any adverse employment decisions taken based on data collected by wearables and must likewise ensure any data collected is properly stored and maintained.”
In light of this, they urge employers to look carefully at any new tools introduced into the workplace to understand how they work, which information is gathered, how that information is used and stored, and how it may be misused or misconstrued, then take action to stay within the bounds of EEO laws.
