Thursday, September 24, 2015

Wearable Technology: Rewards and Risks

Wearables will soon be everywhere.  They’ll be on our wrists, around our waists, arms, and fingers, in our shoes, and embedded in our uniforms.  Wearable technology promises great things for employers, but like all technology it comes with risk.
Wearable tech companies claim that their products can improve the workplace in many ways, including:
  • Productivity.  A number of wearable technologies are intended to provide information that can be used to increase productivity.  Humanyze, for example, measures where employees move within the workplace and tracks who they talk to and for how long.  Humanyze can use this data to identify key players and productivity markers within an organization.  The technology can also track whether groups or departments work closely together or not, demonstrating breakdowns in communication that hamper productivity and profitability.  Fast Company staffers who wore the Humanyze device say that although its use felt Orwellian, it provided some valuable insights.
  • Safety.  While injury prevention is the “Holy Grail” of sports and analytics, it is also a top priority for everyday employers.  New smart vests for road construction workers can warn a worker when a vehicle may be getting too close.  LifeBooster uses 3D technology to protect construction and mine workers who frequently find themselves in dangerous conditions.  Measuring fatigue of truckers can also save lives.  Wearables that track whether hospital employees use hand disinfectant when entering and leaving patient rooms can help limit the spread of disease and enhance worker and patient safety.
  • Wellness.  It’s no secret that employers wish their benefit costs could shrink.  Employers like Target promote wellness through the distribution of Fitbits and other fitness trackers. Promoting the use of these trackers is intended to lower rising health care costs.
While the benefits of wearable technology can be significant and the use of wearables will almost certainly impact how we do business, related employment law risks are real.  In addition to potential morale issues, the risks include:
  • Privacy Concerns.  If employees wear devices that track their location, who they talk to, and when and for how long they use the bathroom, they may feel that their employer is invading their privacy.  Just ask Myrna Arias.  Ms. Arias brought a lawsuit against her employer for tracking her on her smartphone.  State privacy law varies, but it’s not difficult to imagine lawsuits from employees who feel that wearables take tracking too far. 
  • Americans with Disabilities Act/Genetic Information Nondiscrimination Act Issues.  The amount of health information wearables can track is astounding and includes heart and respiratory rates, steps, sweat, blood sugar, and blood oxygen levels, among other things.  Employers take great risks, given the constraints of the ADA and GINA, when they access or require employees to reveal this sort of medical information.  The use of such information must be closely tied to business needs and to the job duties of the individual employee, and should never be undertaken without a clear understanding of the law and the position of the EEOC on its collection and use.
  • Data Security Issues.  Wearables generate boatloads (a technical legal term) of data.  This data must be secured, particularly if it contains confidential business information or health information, given its sensitive nature and the potential health information that wearables collect.  Without proper data security, employers leave themselves open to breaches, hacks, and the employee lawsuits that follow.
  • Reasonable Accommodation Issues.  Whether because of religious conviction or the presence of a disability, employees may request not to wear a wearable, and employers must be prepared to provide reasonable accommodations.  It is well settled that, unless it would create an undue burden for the employer, discrimination law requires employer flexibility in response to accommodation requests. Whether the employee objects because the technology is the “Mark of the Beast” or because he or she is physically unable to wear a device, the employer needs to respond with discrimination law in mind.
Wearables, like any other technology, require mindful adoption, which will allow employers to reap the rewards and mitigate the associated risk.

Posted by Kate Bischoff