Privacy & Information Security Law Blog

On December 19, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued a fact sheet titled, “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws.” The fact sheet addresses the application of employment discrimination laws to the use of wearable technologies in U.S. workplaces.

The fact sheet defines “wearable technologies” or “wearables” as “digital devices embedded with sensors and worn on the body that may keep track of bodily movements, collect biometric information, and/or track location.” The fact sheet highlights the fact that workplaces are increasingly requiring the use of wearables, including devices such as (1) smart watches or rings that track employee activities and monitor their physical or mental condition in the workplace; (2) environmental or proximity sensors that warn employees of nearby hazards; (3) smart glasses and smart helmets that can measure electrical activity of the brain or detect emotions; (4) exoskeletons and other aids that provide physical support and reduce fatigue; and (5) GPS devices that track location.

The fact sheet notes that employers may be conducting “medical examinations” under the Americans with Disabilities Act (“ADA”) if they use wearables to collect information about an employee’s physical or mental conditions or to do diagnostic testing. It also notes that employers may be making “disability-related inquiries” under the ADA if they direct employees to provide health information in connection with using wearables. Unless an employer uses wearables to conduct disability-related inquiries or medical examinations pursuant to certain specified ADA exceptions, such uses of wearables may pose ADA compliance risks.

According to the fact sheet, employers also may violate equal employment laws if the employer uses wearable-generated information to make employment decisions that have an adverse effect on employees because of a protected basis (e.g., race, color, religion, sex, national origin, age, disability or genetic information). An employer also may violate equal employment laws by using wearable-generated data for employment decisions that have a disproportionately large negative effect on the basis of race, color, religion, sex or national origin. Additionally, under certain circumstances, an employer may need to provide exceptions to its wearables policy as reasonable accommodations under Title VII of the Civil Rights Act of 1964, the ADA, or the Pregnant Workers Fairness Act.