By: Taylor Iaculla, Yoon-Woo Nam, and Andrew L. Scroggins
Seyfarth Synopsis: On December 19, 2024, the Equal Employment Opportunity Commission (“EEOC”) published a new fact sheet titled “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws.” The fact sheet describes some of the technologies employees may be fitted with, the types of information that may be tracked –from smart watches that can monitor physical activity, to GPS devices that track location, to devices that detect operator fatigue – and how some uses of that information may violate EEO laws. It also provides the latest illustration of the EEOC’s heightened focus on technological developments implicating employment laws and puts employers on notice that technological tools must be assessed to ensure their use does not run afoul of federal employment laws.
Use of Wearable Technologies in the Workplace
In its fact sheet, the EEOC addresses the increasingly common workplace use of “wearables,” which it describes as “digital devices embedded with sensors and worn on the body” that can track “bodily movements, collect biometric information, and/or track location.” In addition to smart watches or rings that track the activities of those who wear them, the EEOC also called out environmental or proximity sensors that warn wearers of nearby hazards; smart glasses and smart helmets that can measure electrical activity of the brain or detect emotions; exoskeletons and other aids that provide physical support and reduce fatigue; and GPS devices that track location.
Although these devices may provide potential benefits, such as helping workers to avoid hazardous conditions for themselves and others, the EEOC warns that use of the devices may possibly violate federal employment laws.
Collecting Employees’ Health Data
Some of the scenarios proffered by the EEOC describe behavior that is problematic on its face. For example, the EEOC describes an employer who tracks an off duty employee, notes that they have visited a dialysis center, then inquires further in a way that reveals family medical history and genetic information in violation of the law. While this strikes us as an uncommon scenario, employers should take note of the EEOC’s broader point: Wearables may collect certain information about an employee’s physical or mental conditions or perform diagnostic testing in a manner the EEOC finds similar to conducting “medical examinations” or making “disability-related inquiries” under the Americans with Disabilities Act (“ADA”). Generally, permissible “examinations” and “inquiries” must be “job related and consistent with business necessity.” These requires fact-specific, individualized assessments to determine whether an employee is a direct threat – a standard that can be met only in “relatively limited” circumstances, according to the EEOC.
Another ADA trap for employers: If the data collected from wearables is deemed protected under the ADA, then it must be kept in separate medical files and treated as confidential.
Using Collected Information in Employment Decisions
Employers may be held liable for making employment decisions based on information collected through wearable technologies as well.
The EEOC warns employers not to use the devices or data in a discriminatory manner. For instance, an employer may not require the use of wearables only for members of a protected class, or use wearables to surveil or scrutinize those who have engaged in protected EEO activity. Similarly, relying on data from wearables that provide less accurate results for individuals with darker complexions when making employment decisions could violate Title VII of the Civil Rights Act of 1964 (“Title VII”). As a whole, the fact sheet cautions employers against using data in a way that would identify or implicate an employee’s protected characteristic when making employment decisions.
Accommodation Requests
The EEOC also reminds employers of their obligations under Title VII, the ADA, and the Pregnant Workers Fairness Act (“PWFA”), which may require them to make exceptions to their mandatory wearables policy. It expects that any mandatory wearables policy will permit reasonable accommodations. For example, an employer may need to exempt employees from wearing such devices, or provide a reasonable alternative, due to pregnancy, disability, or an employee’s religious beliefs.
Implications for Employers
In sum, the EEOC recommends that employers using or mandating wearable technologies in the workplace remain cognizant of (1) what data is collected; (2) the efficacy of the data; (3) proper storage of any data collected; and (4) the manner in which the data is used, if at all, to make employment decisions.
The fact sheet serves as yet another reminder to employers that existing law applies to new and advancing technologies. It is not enough that the devices have a legitimate purpose on the jobsite, even to preserve individual or overall workplace safety. Employers are responsible for any adverse employment decisions taken based on data collected by wearables and must likewise ensure any data collected is properly stored and maintained. In light of this, employers should look carefully at any new tools that are introduced to the workplace to understand how they work, what information is gathered, how the information is used and stored, and how the information may be misused or misconstrued, then take action to stay within the bounds of EEO laws.
This latest publication also foreshadows the EEOC’s enforcement priorities, showing once again that the EEOC will scrutinize the technological tools that employers increasingly rely on.
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