The U.S. Equal Employment Opportunity Commission (EEOC) released a fact sheet called, "Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws."

Wearables, including watches, rings, glasses, and helmets, "can be used to track various physical factors, such as an employee's location, heart rate, electrical brain activity, or fatigue," according to the EEOC.

The fact sheet clarifies that employment discrimination laws apply to information that is collected and used from wearables.

The EEOC states that employer-mandated wearables that collect health and biometric data on workers may constitute a "medical examination" or "disability-related inquiries" under the Americans with Disabilities Act (ADA).

The ADA regulates the use of workplace medical exams and disability-related inquires and requires employers to keep medical records safe.

The new fact sheet also provides examples of actions to avoid in order to prevent adverse action from collecting data on sex, age, genetic information, disability, or race, and reminds employers they may need to provide reasonable accommodation related to wearables under the Pregnant Workers Fairness Act or as a religious or disability accommodation. "EEOC Highlights How Wearable Technologies May Implicate Employment Discrimination Laws" www.eeoc.gov (Dec. 19, 2024) (Note – as of the date of this article, the information no longer appears on eeoc.gov.)

Commentary and Checklist

Employers that use wearables, according to the EEOC "must be vigilant in following the law to ensure that they do not create a new form of discrimination."

Some ways, per the EEOC, that an employer could violate anti-discrimination laws through the use of wearables in the workplace, include:

• "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. 
• Relying on data from wearable technology that produces less accurate results for individuals with dark skin (race/color) to make adverse employment decisions against those workers. 
• Firing an employee based on an elevated heart rate when the elevated heart rate results from a heart condition (disability).
• Tracking an employee during their lunch break when the employee is taking their parent to a dialysis center, and then inquiring or conducting research about the purpose for the employee's visit to the center, in a way that elicits genetic information, which includes family medical history. 
• Analyzing heart rate variability and skin temperature to infer or predict menopause, and then refusing to promote the employee because of sex, age, and/or disability."