It is becoming increasingly common for employers, especially in the construction, manufacturing, and warehousing sectors, to outfit workers with wearable technologies, or “wearables” — devices worn on the body to improve worker safety and productivity. Worker safety and productivity are becoming increasingly important line items for employers to control. Consider that the construction, manufacturing, and warehousing industries experienced more than 700,000 non-fatal injuries and more than 2,000 fatal accidents in 2022, according to the Government Accounting Office. OSHA estimates that as many as two million workers a year are victims of workplace violence, and employers pay out around $2 billion per week in direct workers’ compensation costs.

So, What Are Wearable Technologies?

To enhance worker safety and monitor employee productivity, employers are increasingly relying on wearable technologies, ranging from smart watches and rings that can track employee movement and physical health, smart glasses and smart helmets that can measure electrical activity of the brain or detect emotions, exoskeletons that provide physical support and reduce fatigue, to GPS devices that track the location of workers. Wearables clearly have the potential to allow workers to produce more work output and to do it more safely, with less physical or mental risk.

Do Wearable Technologies Create Legal Risks for Employers?

Yet requiring employees to don wearables while working also presents potential legal risks for employers under federal and state EEO laws because the devices also permit employers to gather a wide range of personal data about employees. For example, wearables may allow employers to collect medical information about an employee’s physical or mental conditions, such as blood pressure monitors or eye trackers, or to do diagnostic testing on employees, such as electroencephalogram or EEG testing.

What Does the EEOC Have to Say About Wearable Technology in the Workplace?

A “fact sheet” just released by the U.S. Equal Employment Opportunity Commission (EEOC) highlights some of the potential legal risks for employers under the Americans with Disabilities Act (ADA). For one, employers may be conducting “medical examinations” which are limited by the ADA, if they use wearable technologies to collect information about an employee’s physical condition or mental wellbeing, according to the EEOC’s fact sheet. A “medical examination” for any employee, not just those with disabilities, must be “job related and consistent with business necessity,” such as when “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 emphasized that the relevance of this kind of individual assessment, known as a “direct threat” analysis using wearable technology “may be relatively limited.”

How Does the ADA Impact Wearable Technologies for Workers?

Wearable technologies in the workplace may also run afoul of the ADA’s restrictions on employer “disability-related inquiries” of employees, which, like “medical examinations” are highly circumscribed. Under the ADA, a covered employer may not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such inquiry is shown to be job-related and consistent with business necessity or arises under one of a handful of other limited circumstances, such as for certain positions affecting public safety, e.g., police officers or firefighters.

If an employer uses wearable technology to conduct disability-related inquiries or medical examinations of employees, outside of one of the circumstances permitted by the ADA, then those inquiries or examinations may pose “compliance risks” for employers. As an example, the EEOC offered that an employer that requires an employee to wear a company issued tracking watch, collects the employee’s vital signs, information about his gait, and other medical information, may constitute a disability-related inquiry or medical examination, subject to the ADA’s restrictions summarized above. As an additional reminder, if an employer collects medical or disability-related data from worker wearable technology, that data must be stored in separate medical files and generally be treated as confidential medical information.

Can Wearable Technologies Create Risks Under Federal EEO Laws?

Additionally, employers using information collected by wearable technologies must also comply with the nondiscrimination requirements of federal EEO laws, which prohibits employment discrimination based on a protected characteristic, such as race, religion, sex (including gender, sexual orientation, and pregnancy, childbirth, or related medical condition), age, and disability.  An employer that disparately uses wearable-generated information to make employment decisions that have an adverse impact on an employee because of a protected characteristic may violate federal law. Examples of EEO law violations offered by the EEOC include:

• Using heart rate, fatigue level, and/or temperature information to infer that an employee is pregnant, and then, as a result, firing the employee or putting her on unpaid leave against her will.
• Relying on data from wearable technology that produces less accurate results for individuals with dark skin (race or color) to make adverse employment decisions against those workers. 
• Firing an employee based on an elevated heart rate when the elevated heart rate results from a heart condition (disability).
• Tracking an employee during their lunch break when the employee is taking their parent to a dialysis center, and then inquiring or conducting research about the purpose for the employee’s visit to the center, in a way that elicits genetic information, which includesfamily medical history. 

In addition, employers should be familiar with the EEO laws of the jurisdictions in which they do business, as some are more restrictive than their federal corollaries.

What Should Employers Keep in Mind?

With wearable technologies becoming more prevalent as a workforce management tool, especially in the construction, manufacturing, and warehousing sectors, employers should keep in mind some pointers from the EEOC:

• What data will wearable technologies collect? If it will be used to assess employees’ physical or mental health, the data is likely to be viewed as a “medical examination” or “disability-related inquiry,” subject to the ADA’s requirements that the data collected must be “job-related and consistent with business necessity.” Employers should give careful thought to whether or to what extent the data is consistent with the ADA or its state law corollaries.

• How has the data been stored? The ADA requires employers collecting medical or disability-related data from worker wearable technology, to store that data in separate medical files and generally treat it as confidential medical information. Some states place further restrictions on data collected from workers, including California, which requires employers to provide notice to employees as to what personal information they are collecting and how it will be used.

• Will the data be used in employment decision-making that could adversely impact workers? If so, employers must take care to be sure that the data collected does not disparately impact or affect employees because of a personal characteristic protected by federal EEO laws, or their state-level equivalents.

Bean, Kinney & Korman’s employment law practice group works proactively with employers of all sizes, in Virginia, Maryland, and the District of Columbia, to craft a full range of employment policies and documents to meet the compliance challenges of the ADA, and all applicable federal, state, and local laws. If you have questions about the ADA, or need assistance with your company’s workforce policies or forms, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com, or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.