Two news items caught our eye this week:
- NBA teams are conducting some serious player monitoring, using wearable technology to measure fatigue, appraise diets, and track sleep habits, all in an effort to keep the players fit and functioning at a high level.
So should employers follow the lead of the NBA, and invest in biometric monitoring as a means of improving employee wellness and shoring up the bottom line? That may sound like a tempting possibility, but it’s a very risky direction for employers to take.
Wearable technology, like the fitbit, Jawbone Up24, and, coming soon, the Apple Watch, are all able to monitor aspects of fitness. Used with matching smartphone apps, they can help employees improve their overall wellness. Wearables can even assist doctors in diagnosing and treating patients with complex diseases. The technology is available if employers take it upon themselves to monitor employee health in an effort to reduce absenteeism and lower health insurance cost, but doing so creates significant risk of privacy and discrimination claims.
The Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and comparable state laws sharply limit the health-related information that employers can ask for or otherwise obtain from employees. Health and medical information obtained through the use of technology is covered by these restrictions. There are also statuory limitations on employers’ ability to track health and medical information once it’s obtained. The EEOC is starting to take action to enforce the provisions of the ADA and GINA that cover such information gathering.
In August, the EEOC filed its first lawsuit over a wellness program, followed just six weeks later by its second. In early September, the agency filed a lawsuit over an employer’s overly broad medical release, which it claims sought information that was not “job related and consistent with business necessity.” That’s the standard for gathering employee health, medical, fitness, or wellness information: it has to be job related, and it has to be gathered based on business necessity.
Is it wrong to want employees to be healthy? Absolutely not. It’s good practice to encourage employees to use their sick time, and to support and encourage wellness-enhancing activities. Encouraging wellness, however, should not include requiring employees to submit to medical testing, insisting that they participate in specific programs, or imposing financial penalties for poor health or poor habits. The cost of doing so – measured in legal fees, judgments, settlements, and negative employee reaction – can outweigh the financial benefits of a healthy workforce.