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Wearables in the workplace: EEOC highlights risks and challenges

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Washington — The Equal Employment Opportunity Commission is reminding employers that employment discrimination laws apply to the collection and use of data from wearables.

“Directing employees to use wearable devices in order to obtain health-related information may pose EEO-compliance issues for employers, their agents and other EEO-covered entities,” the agency says in a recently released fact sheet.

EEOC says the following types of wearables are “increasingly used in modern workplaces”:

  • Smart watches or rings that track activities and monitor physical or mental conditions
  • Environmental or proximity sensors that warn of nearby hazards
  • Smart glasses and smart helmets that can measure the electrical activity of the brain or detect emotions
  • Exoskeletons and other aids that provide physical support and reduce fatigue
  • GPS devices that track location

One of the initial issues for employers is making sure they aren’t conducting unlawful “disability-related inquiries” or medical examinations under the Americans with Disabilities Act of 1990. Doing so is allowed only in a few instances, the fact sheet notes. That includes compliance with federal safety-related laws or regulations.

Even when allowed by the ADA, employers must ensure compliance with nondiscrimination laws. One example is “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.”

Exceptions to any wearables policies for “reasonable accommodations” should be established, and these include religious practices, disabilities or pregnancy.

Employers also need to consider:

  • The data collected, “including their accuracy and validity across different protected bases.”
  • How the data is stored.
  • How the data is used in employment-related decision-making.

“If they do choose to bring this technology into the workplace, employers must be vigilant in following the law to ensure that they do not create a new form of discrimination,” EEOC Chair Charlotte A. Burrows said in a press release. “There is no high-tech exemption to the nation’s civil rights laws.”

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