In a popular television show, a parent is panicking because he can’t find his 17-year-old daughter. His best friend looks at him and says, “Well just check the chip, didn’t you chip her? Our dog got chipped before we even left the shelter.” While it was a joke clearly designed for laughs, as we’ve seen historically over the last 10-15 years, employee tracking has become an increasingly complex issue, whether that is statutes prohibiting requiring employees to get embedded microchips to GPS tracking.
Eleven states have laws prohibiting employers from requiring chips, clearly indicating that there is, in fact, a concern. Therefore, the EEOC is always assessing issues regarding employee surveillance, sometimes in conjunction with NLRB, and evaluating the utilization of such devices as part of wellness programs. The agency recently covered wearable technologies or “wearables” in an updated post, it looks at everything from GPS to devices that monitor physical and mental conditions, to exoskeletons or other aids that might help provide physical support and reduce fatigue in physically demanding jobs.
The EEOC draws a clear distinction in its rules regarding the purpose of such “wearables” and whether or not they are intended to collect “inappropriate” information regarding employees. The EEOC also indicated that wearables such as an exoskeleton need to be compliant with OSHA standards. So, heart rate and step counters are a possible EEOC issue – exoskeleton less so.
If the employer is using wearables to collect data such as blood pressure or similar items, this may be considered a medical examination under the ADA as well as a disability-related inquiry. While there is a general rule prohibiting health regulations, there are some exceptions if there is a safety-related law or regulation for certain public safety positions, such as firefighters.
Additional exceptions for an employee health program are used if it is “reasonably designed to promote health or prevent disease.” But note that employee health programs typically have to have an opt-out where employees can decline to participate, although there may be some penalty, such as paying an additional premium for health insurance if they decline participation in the wellness program.
The EEOC points out that as wearable technology becomes more and more sophisticated, it is incumbent upon employers to understand the complexity of that technology. For example, heart rate monitors and other devices may be variable dependent upon skin tone, or tracking information may inadvertently capture an employee at a healthcare appointment, a violation of the law.
However, if the company truck that the employee uses has a GPS, and the employer is clear with the employee that GPS tracking is used to monitor use of the truck and employment assignments, and the employee still chooses to take the truck without permission to a medical appointment, that is a different issue and would not necessarily be in violation.
A key concern is how information is used, particularly if it could be classified as biometric data at any point, and the resulting implications for data privacy. The EEOC does not specifically address this issue. Using or storing biometrics is more likely to fall under the FTC or various emerging privacy laws across the United States. Illinois has a particularly robust biometric privacy law.
Bottom Line
Collecting information is one thing - keeping it, storing it and using it is an entirely different issue and is subject not only to the EEOC requirements but to a wide array of other laws. Employers who utilize this data, which may be very specific to the employee, unlike generalized GPS truck data in the example above, need to be aware of the laws in their various jurisdictions to make sure that they do not create issues for themselves.
