On December 19, 2024, the EEOC published a new fact sheet titled “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws.” The purpose of the fact sheet is to provide guidance to employers that implement wearable technologies in the workplace. Wearable technologies are devices worn on the body that have a variety of uses, including providing physical support, monitoring vital signs, proffering feedback, improving performance, and even tracking an employee’s location on a worksite. Examples of wearable technologies are smartwatches, fitness trackers, wearable cameras, glucose monitors, smart rings, glasses, and helmets, environmental or proximity sensors, exoskeletons, and Global Positioning System (“GPS”) devices.
While these technologies can improve productivity, they are not exempt from Federal employment laws. The Americans with Disabilities Act (“ADA”) strictly limits an employer’s ability to engage in disability-related inquiries or medical examinations for employees, even those without a disability. Employers should be mindful that using wearable technology to collect information on the physical or mental conditions of an employee or performing diagnostic testing may constitute “medical examinations” under the ADA. If an employer directs an employee to provide health information, including prescription drug use or a disability, the employer may be making “disability-related inquiries” under the ADA. As such, employers should ensure that they are only conducting medical examinations and disability-related inquiries in accordance with the ADA.
The EEOC’s guidance also cautions employers to avoid using information and data collected by wearable technologies in a discriminatory manner. Discriminatory uses of such data may include making an inference that data indicates an employee is pregnant and then placing the employee on leave or making adverse employment decisions based on data collected from technologies that produce less accurate results for individuals with dark skin. Only requiring members of a specific protected class to use the technologies or using the data for employment decisions that have a disproportionately large negative effect on a specific protected class could be considered to be discriminatory uses of these technologies.
Employers with wearable technology policies may need to make exceptions to provide reasonable accommodations to employees in accordance with Title VII, the ADA, and the Pregnant Workers Fairness Act (“PWFA”). Further, employers should ensure that they are protecting the confidentiality of their employee’s information through proper data storage and safeguarding measures.