Wearable Technologies and the Employment Risks
Wearable technologies, from smart watches to Several states and administrative bodies have responded One of the latest responses is a The Equal Employment Opportunity Commission’s ( The fact sheet also signals a growing
The General State of Wearable Technologies
Wearable technologies are digital devices worn or carried by employees that are used to track and collect certain types of information. Wearable technologies include GPS devices and smart However, wearable technologies include a broad range of devices, such as environmental or proximity sensors which alert employees of nearby hazards, smart glasses or helmets which measure electrical activity in the brain, and exoskeletons which provide employees with increased strength and mobility.
Wearable technologies are becoming increasingly common in the workplace – and for good reason. These technologies can improve workplace safety and productivity Wearable technologies are particularly useful for companies They can also be particularly valuable in construction, manufacturing, and warehousing industries which experience hundreds of thousands of non-fatal injuries and thousands of fatal injuries per year.
However, these benefits come with risks. One of the greatest risks is employee privacy Several state and federal statutes, Other risks include employee security, data interpretation The wearable technology industry is expected to The EEOC fact sheet on wearable technologies represents one piece related to this growing concern.
EEOC Guidance on Wearable Technologies
The EEOC’s recent guidance on wearable technologies provides several important considerations for employers. The EEOC has provided employers with It remains to be seen whether the EEOC under the Trump Administration will rescind or amend this guidance that was issued at the end of Biden’s Administration.
Medical Examinations and Disability-Related Inquiries
The EEOC’s guidance provides that wearable technologies may constitute “medical examinations” and/or “disability-related inquiries” in violation of the ADA.
To decide whether Wearable technologies, such as eye track Wearable technologies may also be deemed to be conducting medical examinations where they are conducting diagnostic testing, such as EEGs.
Disability-related inquiries, on the other hand, are questions that are likely to elicit information about an employee’s disability. Employers may ask employees about disability when
The ADA limits Medical examinations and disabilities-related inquiries If an employer uses wearable technologies to conduct medical examinations or disability-related inquiries outside of one of these exceptions, under the EEOC’s guidance, the employer risks violating the ADA.
Non-Discrimination
The EEOC’s guidance also provides that employers must not use information collected by wearable technologies to discriminate against employees based on a protected characteristic. Protected characteristics include, but are not limited to, race, color, religion, sex, national origin, age, disability, and genetic information.
For example, according to the EEOC, employers may violate non-discrimination laws by:
Using data from wearable technologies to infer that an employee is pregnant, then taking an adverse action against the employee as a result.
- Relying on data from wearable technologies which produces less accurate results for certain protected classes, then taking adverse actions against those employees based on that data.
- Tracking an employee to a medical center and then researching the purpose of the employee’s visit in a way that elicits genetic information.
- Moreover, employers may not selectively use wearable technologies on a discriminatory basis nor use information from wearable technologies to make employment decisions which have a disproportionate adverse effect on the basis of a protected characteristic.
Reasonable Accommodations
The EEOC’s guidance also suggests that employers may need to make exceptions to the use of wearable technologies as reasonable accommodations under Title VII (religious belief, practice, or observance), the ADA (disability), or the Pregnant Workers Fairness Act (pregnancy, childbirth or related medical conditions).
Confidentiality
If an employer collects medical or disability-related data from wearable technologies, the employer, generally, must maintain that data in separate medical files and treat it as confidential medical information.
Other Laws and Guidance on Wearable Technologies
The guidance expressed in the EEOC fact sheet is similar to that presented by other administrative agencies. The EEOC fact sheet is similar Some of these laws regulate the collection and Some of these laws regulate the collection and handling of employee biometric information.
Other laws regulate certain forms of employee location tracking,
or regulate employee surveillance more broadly.[1]Key Takeaways[2]Employers who use wearable technologies in the workplace should:[3]
Assess the type of information collected by the wearable technologies and determine whether that collection would constitute an improper medical examination or disability-related inquiry under the ADA.
Evaluate the accuracy and validity of the information collected by the wearable technologies before making any adverse employment decisions based on that information.
- Refrain from using information collected by wearable technologies to discriminate against employees on the basis of a protected characteristic.
- Consider whether any state or local laws govern the use of wearable technologies or the information collected by the wearable technologies.
- Because the legal framework governing wearable technologies is quickly evolving, employers would be wise to consult with employment counsel to ensure their continued compliance with federal and state laws, regulations, and guidance.
- Note
: Since this post was written, the EEOC Fact Sheet appears to have been removed from the EEOC website. This may indicate that the new administration is not inclined to follow or issue the same guidance.
FOOTNOTES See, e.g., 740 Ill. Comp. Stat. 14/1 et seq. ; Tex. Bus. & Com. Code SS 503.001; Wash Code SS 19.375, H. 24-1130, 74th Gen. Assemb. 2nd (Colo. 2024).
See, e.g., Haw. Rev. Stat. Stat. Ann. Ann. Code Penal SS 637. Stat. Stat. Rights Law SS52-C; Ann. SS 31-48d.0
