Employment Law Report
EEOC Focuses on Wearable Technology
By: Michelle Wyrick
The EEOC published a fact sheet, “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” that addresses potential workplace issues with wearable technology often found in smart watches, smart glasses and helmets, and similar devices. Wearable technologies are digital devices that are worn and that track information like movement, heart rate, location, or biometric information. The fact sheet reminds employers that some uses of wearable technology can violate anti-discrimination laws.
When an employer requires employees to wear technology that collects information about an employee’s physical or mental conditions, they may be conducting a medical examination under the Americans with Disabilities Act (“ADA”). If the technology requires an employee to provide health information, including information about prescription drug use, the employer could also be making a disability-related inquiry. Under the ADA, the use of medical examinations and disability-related inquiries must be job-related and consistent with business necessity.
Moreover, if an employer uses information collected by wearables, it must comply with federal anti-discrimination laws. Employers may not use such information to make employment decisions that adversely impact employees because of a legally-protected status. As an example, the guidance states that an employer could violate federal anti-discrimination laws by using information about an employee’s heart rate, fatigue level, and/or temperature to infer that the employee is pregnant and then terminating her employment or placing her on unpaid leave against her will. Similarly, terminating an employee based on an elevated heart rate could violate disability discrimination laws if the employee’s elevated heart rate results from a heart condition.
Likewise, an employer cannot selectively use wearables to monitor employees based on a protected status or in retaliation for engaging in protected activity. The fact sheet also reminds employers that there may be situations in which they must provide reasonable accommodations relating to wearable technology for religious beliefs, disabilities, or pregnancy.
