Can Wearable Technology in the Workplace Violate the ADA? EEOC Guidance Explained

New EEOC guidance confirms that using wearable devices to monitor employees can violate the Americans with Disabilities Act (ADA) if not implemented with extreme care. The primary risk involves the collection of health data, which may constitute an illegal medical examination. Employers must ensure any data collection is job-related and consistent with business necessity, store data confidentially, and avoid discriminatory use of the information.

What Types of Wearable Technology Are Used in the Workplace?

Wearable technologies are digital devices with sensors that track information like body movements, biometrics, or location. Common examples in the workplace include:

• Health Monitors: Smartwatches or rings that track activity, heart rate, or other indicators of physical or mental condition.
• Safety Equipment: Environmental sensors that warn of hazards, or smart helmets that can monitor fatigue.
• Physical Aids: Exoskeletons designed to reduce fatigue and provide physical support.
• Location Trackers: GPS devices used to monitor employee movement.

The EEOC’s concern is that data from these devices, especially health monitors, can reveal information about an employee's disabilities or other health conditions.

How Could Using Wearables Violate the ADA?

The core issue lies in the nature of the data collected. According to the EEOC, using wearables to gather information about an employee’s physical or mental conditions may qualify as a medical examination or a disability-related inquiry.

The ADA strictly limits such examinations and inquiries. They are only permissible if they are job-related and consistent with business necessity. For example, a fitness tracker might be justified for firefighters to monitor for heat stress, a direct job-related health risk. However, mandating a smartwatch to track the stress levels of all office employees would likely violate the ADA unless a specific, justified business necessity can be demonstrated.

Outside of these narrow permitted uses, requiring employees to use wearables that collect health data may be illegal.

What Are Other Discrimination Risks with Workplace Wearables?

Beyond ADA violations, employers risk breaking other federal anti-discrimination laws. Potential legal pitfalls include:

• Disparate Impact: Using wearable-generated information for employment decisions (like promotions or discipline) that disproportionately harm individuals with certain protected characteristics, such as age or disability.
• Disparate Treatment: Intentionally using wearables to monitor only employees of a specific race, sex, or religion, or in retaliation for an employee filing a complaint.
• Failure to Accommodate: Refusing to grant an exception to a wearable policy as a reasonable accommodation for a employee's religion, pregnancy, or disability.
• Confidentiality Breaches: Failing to keep medical information obtained from wearables separate from general personnel files and treat it as strictly confidential.

What Should Employers Consider Before Implementing Wearables?

Based on our assessment of the EEOC guidance, employers should carefully evaluate the following before introducing wearable technology:

• Data Purpose and Validity: What specific data is collected? Is it accurate, and is it valid for its intended business purpose? Collect only the data that is absolutely necessary.
• Storage and Security: How is the data stored? Who has access? Medical data must be stored securely and separately.
• Decision-Making: How will the information be used in employment decisions? Could any use negatively impact a group of employees with a protected characteristic?

To mitigate risk, employers should have a clear, written policy detailing the business necessity for the wearable, how data is used and protected, and the process for requesting accommodations. Voluntary use programs, with robust informed consent, are far less risky than mandatory ones.

Before rolling out wearable technology, conduct a thorough assessment to ensure the program is non-discriminatory, necessary, and compliant with the latest EEOC guidance.