The Equal Employment Opportunity Commission (EEOC) recently released a “fact sheet” concerning employer mandates that require employees to use wearable technologies. According to the EEOC, such requirements could violate Title VII of the Civil Rights Act of 1964, as amended (Title VII), and the Americans with Disabilities Act (ADA). Although the EEOC released no statistics on the prevalence of these mandates, they usually arise in connection with employer health and wellness programs. The EEOC addressed that subject in a final rule in 2016, which, among other things, required that such programs be completely voluntary.
What are “wearables”?
The fact sheet does not specifically define what constitutes a wearable, but characterizes them as “digital devices embedded with sensors and worn on the body that may keep track of bodily movements, collect biometric information, and/or track location.” Such devices include the following:
[S]mart watches or rings that track their activities and monitor their physical or mental condition in the workplace; environmental or proximity sensors that warn wearers of nearby hazards; smart glasses and smart helmets that can measure electrical activity of the brain (electroencephalogram or “EEG” testing) or detect emotions; exoskeletons and other aids that provide physical support and reduce fatigue; Global Positioning System (GPS) devices that track location; and various other devices.
Generally, the ADA prohibits employers from making “disability-related inquiries” and conducting employee medical examinations unless they are “job-related and consistent with business necessity.” Because wearables may collect information about an employee’s health or conduct some form of diagnostic testing, their mandated use could constitute either a medical examination, because of the information that the wearable collects, or a prohibited disability-related inquiry to the extent that employees are required to enter sensitive health information involving health conditions or medications they are taking. The fact sheet recognizes that the ADA permits disability-related inquiries and medical examinations under the following circumstances:
- Where required by safety-related laws and regulations;
- For positions affecting public safety; and
- Where they are purely voluntary and part of an employer health and wellness program that promotes health or seeks to prevent disease.
If the wearable seeks information for one of the purposes in the foregoing exceptions, then its collection would not constitute a prohibited inquiry or examination. However, the use of that information could still be problematic.
Assuming that the collection of health information would not violate the ADA, its use might still violate Title VII or the ADA. According to the fact sheet, if the collected information is used to make adverse decisions involving an employee due to a protective basis, it would violate the anti-discrimination laws. The fact sheet provides some examples: using heart rate and other information to infer that an employee may be pregnant; using information from wearables that may be less accurate for employees with dark skin; relying on heart rate information to conclude that an employee has a heart condition that qualifies as a disability; or to infer that an employee is going through menopause. Employment decisions based on that information would constitute sex, age or disability discrimination; tracking an employee during a break to take a parent to a medical appointment might reveal genetic information and family medical history, which would violate the Genetic Information Nondiscrimination Act (GINA).
Reasonable Accommodations
The EEOC’s fact sheet reminds employers that any acceptable wearable policy must contain an exception for reasonable accommodations for religious beliefs (Title VII), the ADA (disability), or pregnancy, childbirth or related medical conditions (Pregnancy Workers Fairness Act).
The fact sheet creates no new obligations or requirements but applies pre-existing prohibitions to modern concepts. The EEOC requires employers to consider the nature of the information being collected, how that information is maintained and how it is used.
