EEOC Issues New Guidance on Wearable Technologies: Key Points for Employers

As more employers incorporate wearable technology in the workplace, including those enhanced by artificial intelligence, the Equal Employment Opportunity Commission (EEOC)’s new fact sheet “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” offers important considerations for employers.  The EEOC explains how employers can navigate the complexities of using wearable technologies while ensuring compliance, primarily, with the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and to a lesser extent, Title VII and GINA.

What Are Wearable Technologies?

Wearable technologies, or “wearables,” are electronic devices that are designed to be worn on the body. These devices are often embedded with sensors that can track bodily movements, collect biometric information, monitor environmental conditions and/or track GPS location. Common examples of wearables include:

• Smartwatches
• Fitness Trackers
• Wearable Cameras
• Continuous Glucose Monitors
• Smart Rings
• Environmental or Proximity Sensors
• GPS Devices
• Other aids

Other examples of wearables that are beginning to be used in the workplace include smart glasses and smart helmets that can measure electrical activity of the brain referred to as electroencephalogram or “EEG” testing or detect emotions.  Exoskeletons are also being used to provide physical support and reduce fatigue.

Wearables in the workplace may implicate federal and state employment, data privacy, AI, and potentially other laws when employers require employees to wear them or if the information collected from the employee’s wearable is reported to the employer.

Key Considerations From the EEOC Guidance

The EEOC’s new guidance outlines several important considerations for employers using wearable technologies with employees:

1. Medical Examinations and Disability-Related Inquiries: Employers using wearables to collect information about an employee’s physical or mental conditions, such as blood pressure monitors or eye trackers, may be conducting “medical examinations” under the ADA. Similarly, directing employees to provide health information in connection with using wearables may constitute disability-related inquiries. Under the ADA, medical examinations and disability-related inquiries are strictly limited to situations where they are job-related and consistent with business necessity such as in connection with a request for reasonable accommodation, in connection with a concern about whether an employee’s ability to perform essential job functions is impaired by a medical condition, or when there is a concern the employee may pose a direct threat of serious harm to their own or others’ health or safety due to a medical condition. In addition, medical examinations and inquiries are also permitted when required under a federal law or safety regulation (i.e. DOT or OSHA requirements), when conducted as part of a periodic examination of employees working in certain positions affecting public safety that are narrowly tailored to address specific job-related concerns (i.e. police officers, firefighters), or when made as part of voluntary wellness programs. A disability-related inquiry is a question(s) that is likely to elicit information about a disability. There are a variety of factors considered in determining whether a test or procedure is a medical examination, but generally speaking, a medical exam is defined by the EEOC as a procedure or test that seeks information about an individual’s physical or mental impairments or health.
2. Confidentiality: Any medical or disability-related data collected from wearable devices must be kept confidential and stored separately from the employee’s personnel file. This information should only be shared with individuals who need to know it for legitimate business reasons consistent with the requirements of the ADA and PWFA.
3. Non-Discrimination: Employers must ensure that the use of wearable-generated information does not lead to discrimination based on a protected characteristic such as race, color, religion, sex, national origin, age, disability, or genetic information. For example, the EEOC explains that using heart rate data to infer pregnancy and then making adverse employment decisions based on that information could violate EEO laws.
4. Reasonable Accommodation: Employers may need to make exceptions to a wearables policy as a reasonable accommodation under Title VII (religious belief, practice, or observance), the ADA (disability), or the PWFA (pregnancy, childbirth, or related medical conditions). For example, this could include providing an alternative for employees needing accommodation due to pregnancy, disability or a conflicting religious belief.
5. Accuracy and Validity of Data: Employers should consider the accuracy and validity of the data collected by wearables, especially across different protected bases. Inaccurate data that disproportionately affects certain groups could lead to discriminatory practices. For example, the EEOC explains that relying on wearable technology that produces less accurate results for individuals with dark skin could lead to adverse employment decisions against those workers.

This overview highlights the key points from the EEOC’s new guidance. Employers should review the full guidance to ensure compliance and consult with legal counsel if they have specific questions or concerns. In addition to compliance with discrimination laws, the adoption of wearables and other emerging technologies in the workplace to manage human capital raises a number of additional legal compliance challenges including privacy, occupational safety and health, labor, benefits and wage-hour compliance to name a few. Jackson Lewis’ multi-disciplinary team of lawyers is prepared to assist.