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. 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” 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.” 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.”