In a popular television show, a parent is panicking because he can’t find his 17-year-old daughter. His best friend looks at him and says, “Well, just check the chip, didn’t you chip her? Our dog got chipped before we even left the shelter.” While it was a joke clearly designed for laughs, as we’ve seen historically over the last 10 to 15 years, employee tracking has become an increasingly complex issue, whether it involves legislation prohibiting the requirement that employees get embedded microchips to GPS tracking.
EEOC’s Position on ‘Wearables’
Eleven states have laws prohibiting employers from requiring chips, clearly indicating that there is, in fact, a concern. Therefore, the Equal Employment Opportunity Commission (EEOC) is always assessing issues regarding employee surveillance, sometimes in conjunction with the National Labor Relations Board (NLRB), and evaluating the use of such devices as part of wellness programs.
The EEOC recently covered wearable technologies (or “wearables”) in an updated post. It looks at GPS and a broad range of wearables, including devices that monitor physical and mental conditions and exoskeletons or other aids that might help provide physical support and reduce fatigue in physically demanding jobs.
The EEOC draws a clear distinction in its rules regarding the purpose of such wearables and whether they are intended to collect “inappropriate” information regarding employees. The agency also indicates that wearables such as exoskeletons need to be compliant with Occupational Safety and Health Administration (OSHA) standards. So, heart rate and step counters are a possible EEOC issue—exoskeletons less so.
Exceptions
If the employer is using wearables to collect data such as blood pressure or similar items, this may be considered a medical examination under the Americans with Disabilities Act (ADA) as well as a disability-related inquiry. While there’s a general rule prohibiting health regulations, there are some exceptions if there’s a safety-related law or regulation for certain public-safety positions, such as firefighters.
Additional exceptions for an employee health program are used if it’s “reasonably designed to promote health or prevent disease.” But note that employee health programs typically have to have an opt-out where employees can decline to participate—although there may be some penalty, such as paying an additional premium for health insurance if they decline participation in the wellness program.
Employers’ responsibilities
The EEOC points out that, as wearable technology becomes increasingly more sophisticated, it’s incumbent upon employers to understand the complexity of the technology. For example, heart rate monitors and other devices may be variable dependent upon skin tone, or tracking information may inadvertently capture an employee at a healthcare appointment—a violation of the law.
However, if the employer is clear with the employee that GPS tracking is used to monitor use of a work truck and employment assignments, and the employee still chooses to take the truck without permission to a medical appointment, that is a different issue and wouldn’t necessarily be in violation.
A key concern is how information is used—particularly if it could be classified as biometric data at any point—and the resulting implications for data privacy. The EEOC doesn’t specifically address this issue. Using or storing biometrics is more likely to fall under the Federal Trade Commission (FTC) or various emerging privacy laws across the United States. Illinois has a particularly robust biometric privacy law, for instance.
Bottom line
Collecting information is one thing—keeping it, storing it, and using it is an entirely different issue and is subject not only to the EEOC requirements but also to a wide array of other laws. Employers that use this data—which may be very specific to the employee, unlike generalized GPS truck data in the example above—need to be aware of the laws in their various jurisdictions to make sure that they don’t create issues for themselves.
Jo Ellen Whitney is an attorney with Dentons Davis Brown in Des Moines. You can reach her at joellen.whitney@dentons.com.
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