The Equal Employment Opportunity Commission (EEOC) released guidance for employers to ensure that any wearables provided to workers don’t elicit any discriminative health information that could harm them.
Workers are increasingly being required to put on wearable devices so their employers can collect information about their physical or mental conditions or to conduct diagnostic testing, according to the EEOC.
For example, employees now can be fitted with smart 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 helmets that can measure brain electrical activity or detect emotions; exoskeletons and other aids that provide physical support and reduce fatigue; GPS devices that track location; and various other devices.
However, under the Americans with Disabilities Act, such practices may be deemed “medical examinations” and “disability-related inquiries” if employers also require workers to provide health information such as prescription drug use or whether they have been diagnosed with a disability. Such activities are limited to situations when it is “job related and consistent with business necessity” for a specific employee.
This may include situations “where an employer individually assesses if an employee with a medical condition poses a significant safety risk that cannot be reduced by reasonable accommodation,” the EEOC writes. “The relevance of this type of individualized assessment, called a ‘direct threat’ analysis, to the use of wearables may be relatively limited.”
Examples permitted under the ADA include when such examinations or inquiries are required by federal safety-related laws or regulation; for certain employees in positions affecting public safety, such as police officers or firefighters; or if they are voluntary and part of an employee health program to promote health or prevent disease.
Information collected from wearables in these permitted activities must be maintained in separate medical files and treated as confidential information with limited exceptions, according to the EEOC.
The employer must also comply with laws that prohibit employment discrimination based on a protected characteristic: race, color, religion, gender, sexual orientation, pregnancy, childbirth or related medical conditions, national origin, age, disability or genetic information.
“If an employer uses wearable-generated information to make employment decisions that have an adverse effect on employees because of a protected basis, they could violate these EEO laws,” the EEOC writes.
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KUEHNER-HEBERT is a freelance writer based in Running Springs, Calif. She has more than three decades of journalism experience. Reach her at [email protected].