In recent years, the use of
wearable devices, such as smartwatches and Fitbits, has gained popularity not
only with the general public and consumers but also among employers as a way to
encourage workers to maintain healthier habits and, in turn, help reduce health
care costs. Increasingly, companies are distributing wearable devices to
employees as part of workplace wellness programs. According to one estimate,
nearly half of employers that have a workplace wellness program use fitness
trackers.[1]
This trend shows little sign of abating. The
data collected from these trackers—on such things as quality of sleep and
activity level, for example—can be shared with health insurance companies,
which may allow employers to negotiate lower insurance policy rates for their
employees. Companies that have encouraged wearable fitness trackers have also
realized other benefits, including decreased absenteeism and increased worker
productivity.
Beyond wellness applications,
employers around the globe are also using wearables to increase worker safety.
One company in Australia, for example, has had its truck drivers wear
“SmartCaps”[2] in an effort to reduce fatigue-related
accidents. These hats resemble baseball caps but include built-in sensors that
can detect driver alertness and provide a warning to drivers when their fatigue
level begins to rise.
To be sure, the benefits of
wearable devices, as well as the value of the data generated by them, cannot be
ignored. Yet, despite the potential benefits of introducing wearables into the
workplace, employers should be mindful of the potential legal pitfalls.
Monitoring employees, whether during work or non-work hours, can expose
employers to legal risks even if the monitoring is intended to promote employee
wellness, improve business operations, or keep employees safe.
What Are the Legal Risks?
Several legal risks arise from
the various health-related data that can be collected from these workplace
wearables and used by employers. One key threat is that cybercriminals could
hack into the servers of companies that sell fitness tracking wearables (and
manage the associated mobile health apps) and access employees’ personal data.
It is also possible that these companies could sell employees’ personal data to
advertising companies or other third parties without employee knowledge.
In addition to data privacy
and security concerns, antidiscrimination laws also represent an important risk
for employers. For example, under the Americans with Disabilities Act (“ADA”),
employers are prohibited from conducting a “medical examination” of employees
unless the examination is “job-related and consistent with business necessity.”[3]
A medical examination includes a procedure or
test that seeks information about an employee’s physical or mental impairments
or health. Because wearables today can measure various health metrics, such as
heart rate and blood pressure, an employer’s rollout of wearables could unintentionally
result in prohibited medical examinations under the ADA. While employers are
permitted to conduct voluntary medical examinations as part of voluntary
workplace wellness programs, provided that certain conditions are met, this is
still an area in which employers should be cautious. Further, to the extent
that wearables collect information about employees’ family medical history or
other genetic information, employers may face liability under the Genetic
Information Nondiscrimination Act (“GINA”).
Under GINA, it is illegal for
employers to use genetic information in making employment decisions. Finally,
employee monitoring, particularly with respect to GPS location, can also
potentially run afoul of protections afforded by the National Labor Relations
Act (“NLRA”).
How Can Employers Mitigate the
Risks of Using Wearables in the Workplace?
While the law in this area is
in its nascent stage, before rolling out a wearables program, either as part of
an overall wellness plan or independently, employers in all industries should
do the following:
·
Although wearable technology is rapidly advancing and
adopting novel methods of employee tracking and monitoring may be alluring,
exercise particular caution when adopting novel tracking methods, regardless of
how strong the underlying business, health, and/or safety justification may be.
·
Consider working with a third-party vendor to
administer the workplace wellness program so that you receive information
derived from employee wearables on an aggregate basis that does not
individually identify data for any specific employee.
·
Ensure that there is a policy in place detailing how
the technology will be used and the scope of information that will be
collected. Also, consider obtaining employee
consent related to data collection.
·
As the legal landscape surrounding workplace wearables
evolves, closely track and monitor developments in applicable state and federal
laws (including the ADA, GINA, and NLRA, among others) and revise your policies
accordingly.
A version of this article
originally appeared in the Take 5 newsletter “Five Trending Challenges
Facing Employers in the Technology, Media, and Telecommunications Industry.”
[1] Patience Haggin, As Wearables in
Workplace Spread, So Do Legal Concerns, The Wall Street Journal, March 13,
2016, http://www.wsj.com/articles/as-wearables-in-workplace-spread-so-do-legal-concerns-1457921550.
[2] Rio Tinto, Hi-Tech Cap Helps Coal &
Allied Truck Drivers Work Smarter to Manage Fatigue (May 2013), http://www.riotinto.com/media/media-releases-237_8713.aspx.
[3] U.S. Equal Employment Opportunity Commission, Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (ADA)(2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html.
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