Tracking the legal risks of wearable devices

Posted on Oct 25, 2018 :: Partner
Posted by Katie Loehrke

Today, it’s hard to scan a roomful of people without noticing at least a handful of wearable tracking devices. According to research published by PLOS Medicine, at least one in six American consumers use either a smartwatch or a fitness band. Employers are on the bandwagon, too, with 35 percent of companies including wearables as part of their wellness programs.

In addition to smartwatches and fitness bands, smart glasses have been utilized in the workplace, with popularity especially in the manufacturing sector. Some truck drivers even wear “smart caps,” which include sensors to identify driver fatigue.

Are you tracking medical information?

While these devices are certainly intriguing, employers must be careful requiring employees to use wearable technologies that record certain employee data.

The Americans with Disabilities Act (ADA) prohibits employers from conducting medical exams on employees unless the exams are job related and consistent with business necessity. And while a medical exam seeks information about an employee’s physical or mental health, many fitness trackers are capable of recording activity levels as well as heart rate and blood pressure. It’s possible that these collections could be considered medical exams under the ADA.

Voluntary use of these devices by employees as part of a wellness program is acceptable. But requiring an employee to use a wearable device could be problematic.

Are you tracking physical positions?

For some companies, wearable technology is less about how much employees are moving and more about where they are moving.

Some companies ask employees to wear devices to examine/optimize organizational performance. For example, a worker may wear a device armed with GPS technology in a warehouse to track his or her movements and later identify potential efficiencies (or deficits). When employees’ jobs require them to respond quickly, GPS can determine which employee is closest to a particular site.

What about privacy?

Monitoring employees’ physical positions while they are working will generally be seen as reasonable, and therefore, not an invasion of the employee’s privacy. A court would consider the business justification for monitoring, such as safety or efficiency.

A court would also consider whether the employee has an expectation of privacy in a given situation. Employees typically don’t have a reasonable expectation of privacy when they are in open and public areas where they would normally expect to be seen or when they’ve been informed of surveillance.

On the other hand, wearable technology could contribute to an invasion of privacy claim when employers monitor employees’ off-duty positions. It’s much more difficult for an employer to prove a business case for monitoring employees on their personal time.

Some states also have laws prohibiting employers from taking action against employees based on their legal activities on non-work time.

Note that some state laws prohibit the use of mobile tracking devices to track any individual, but such laws usually allow exceptions for situations in which the tracked individual agrees. In these states, policies and/or agreements alerting employees are especially important.

The take-away? Wearable technologies are increasingly popular, but employers must be aware of potential legal implications.

Katie Loehrke is a certified professional in human resources and an editorial manager with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm located in Neenah. She specializes in regulatory compliance topics. For more information, visit www.jjkeller.com/hr and www.jjkellerlibrary.com.