EEOC Issues Fact Sheet Identifying Potential Ways "Wearables" in the Workplace Can Implicate Federal Anti-Discrimination Laws
On December 19, 2024, the United States Equal Employment Opportunity Commission (EEOC) issued a fact sheet entitled, “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws.” The EEOC’s Fact Sheet identifies ways federal anti-discrimination laws, including the Americans with Disabilities Act (ADA) in particular, apply to information collected and utilized from employer-mandated wearable technology (“wearables”) such as watches, rings, safety glasses or helmets that collect data concerning employees’ health and biometrics.
The Fact Sheet notes that employers who require their employees to use such wearables to collect information about an employee’s physical or mental conditions (such as blood pressure monitors or eye trackers) or that conduct diagnostic testing like an EEG may be conducting “medical examinations” as defined by the ADA. It also states that if a wearable requires an employee to provide certain health information such as information concerning the employee’s disability or prescription drug use, including at the time they set up the wearable device, the employer mandating the wearable may be making a disability-related inquiry under the ADA.
Pursuant to the ADA, employers may only use medical examinations or make disability-related inquiries under certain strictly limited circumstances where such inquiries or examinations are “job related and consistent with business necessity.” “Job related and consistent with business necessity” may include those situations where an employer conducts a so-called “direct threat” analysis to individually assess whether or not an employee with a medical condition poses a significant safety risk that cannot be minimized through a reasonable accommodation.
The Fact Sheet points out that disability-related inquiries and/or medical examinations are permitted under the following circumstances:
- When they are required by a federal, safety-related law or regulation;
- For certain employees in positions that affect public safety, such as police officers and firefighters; and
- If the disability-related inquiry or medical examination is voluntary and part of an employee health program that is reasonably designed to promote health or prevent disease.
If an employer requires employees to use wearables to conduct disability-related inquiries or medical examinations beyond one of the above-noted exceptions, those inquiries or examinations run the risk of violating the ADA.
Moreover, to the extent an employer ends up gathering medical or disability-related data from the wearables it requires its employees to use, the ADA requires that employer to maintain the collected data as confidential medical information in separate medical files marked as “confidential.”
In addition to complying with the ADA, employers must also comply with Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Pregnant Workers Fairness Act. The Fact Sheet notes that an employer will run afoul of these anti-discrimination laws if it uses information from wearable technology to make employment decisions that have an adverse impact on employees because of any of the following protected categories: race, color, religion, sex (including gender, sexual orientation, and/or pregnancy, childbirth or related medical conditions), national origin, age (40 years or older), disability, or genetic information. The Fact Sheet also includes a number of examples where an employer could violate these laws by using data collected from wearables, such as:
- Using heart rate, fatigue level, and/or temperature information to infer that an employee is pregnant, and then firing the employee or putting her on unpaid leave against her will as a result of that information (pregnancy discrimination);
- Relying on wearable technology that yields less accurate results for individuals with dark skin to make employment decisions adverse to employees of color (race or color discrimination);
- Terminating an employee as a result of having an elevated heart rate due to a medical condition (disability discrimination);
- Tracking an employee who is taking their parent to a dialysis center and then making an inquiry or conducting research about the purpose of the employee’s visit to the center in a way that reveals genetic information, including family medical history (genetic information discrimination);
- Analyzing heart rate variability and skin temperature to predict or infer menopause in a female employee and then refusing to promote that employee based on sex, age, and/or disability.
The Fact Sheet also notes that employers may not pick and choose which employees they will monitor when using employer-required wearables based on any protected categories or in retaliation for an employee engaging in protected activity.
In addition, an employer may not selectively use wearables to monitor some employees based on a protected characteristic, such as only Hispanic employees, as doing so could amount to disparate treatment based on their national origin in violation of Title VII. Likewise, an employer may not selectively use data from a wearable to surveil or scrutinize employees who have engaged in protected activity in retaliation against them without similarly monitoring other employees who have not asserted those same rights.
Furthermore, an employer could violate anti-discrimination laws by using information collected by wearables to make employment decisions that have a disproportionate negative impact based on race, color, religion, sex or national origin.
The Fact Sheet also notes that employers may need to provide employees reasonable accommodations related to wearables in the context of an employee’s religious belief, practice or observance; disability; or pregnancy, childbirth or related medical conditions, even if the employer would otherwise be permitted to use wearables to collect medical information under the ADA.
In light of the EEOC Fact Sheet, employers should be sure to consider what information wearables collect, including the accuracy and validity of such information in the context of various protected categories; how such information is stored; and whether and how such information is used in employment-related decisions, including the potential impacts of such information on employees in different protected categories.
Employers who currently require employees to use wearable technology or are considering requiring such technology are well-advised to consult with legal counsel about the implications of the EEOC’s Fact Sheet on their use of data gathered from such wearables.
Mirick’s Labor & Employment attorneys regularly advise clients about the application of the various federal and state anti-discrimination laws. Please contact any member of our Labor, Employment and Employee Benefits Group if you have any questions about the EEOC’s Fact Sheet.
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