Wearable devices in the workplace and the ADA

Executive Summary and Definitions

As technology continues to develop, wearable watches, rings, glasses, and other devices allow people to track exercise, sleep, wellness, and other aspects of day-to-day life. While devices like the Fitbit and Apple Watch are perhaps most commonly known for their ability to track the wearer’s exercise or fitness level, these devices, and many others, can track increasing aspects of an individual’s physiology. Based on the data these wearable devices receive, the devices may encourage wearers to get more movement throughout the day, alter their sleep habits, or make other lifestyle decisions.

In recent years, employers have both offered wearable devices to their employees as part of wellness benefit programs and required employees to wear devices. For example, a company may offer employees the opportunity to have a Fitbit to encourage movement and exercise and reduce company healthcare costs. In other circumstances, employers have required employees to wear certain kinds of devices to track productivity, safety, or other parts of an individual’s work. For example, certain wearable devices can detect extreme levels of heat and warn an employee or an employer about potentially imminent risks.

This report will examine the implications of wearable devices in the workplace for people with disabilities under the Americans with Disabilities Act (ADA). Specifically, it will discuss considerations and responsibilities that employers should keep in mind under the ADA and rights that people with disabilities have under the ADA with respect to wearable devices. For the purposes of this report, wearable devices will be used as a general term to refer to a wide array of technological tools that people can wear on their bodies including smartwatches, fitness trackers, smart glasses, rings, and other devices that track bodily movement or other physiological signs. 

Considerations for Employers

Why provide employees with wearable devices?

Employers may be motivated to provide wearable devices to their employees for several reasons. Wearable devices can serve as a perk for employees to encourage employee morale and retention, a mechanism to try to reduce employer healthcare costs, a team-building tool to encourage health in the workplace, a tool to track productivity, or a risk-management tool to alert workers to hazardous conditions, among other things. To provide context for this report’s discussion of wearable devices in the workplace with respect to the ADA, this section will briefly discuss some of the common reasons why employers offer wearable devices to their workforce.

First, many employers provide wearable devices to their employees as part of wellness programs to reduce an employer’s corporate healthcare costs. For many employees in the United States, healthcare coverage options are intricately intertwined with their employment. Typically, an employer covers a portion of the monthly healthcare insurance premium and an employee covers the remaining portion. To reduce employer healthcare costs, some employers have introduced wellness programs that include activities and benefits related to the promotion of health and wellbeing, prevention of disease and chronic illness, and education related to overall health, among other things.  For example, UnitedHealthcare, a large insurance company, provided a program called UnitedHealthcare Motion. Under the program, workers could receive up to $1,000 a year if they met certain goals, like 10,000 daily steps.  Similarly, many companies, including Target, have provided wearable devices to their employees and set company-wide wellness goals or created company-wide wellness competitions.  Studies have shown that setting tiered step-goals for employees can increase overall physical movement, and therefore improve overall employee health. 

Second, employers may provide wearable devices to their employees to monitor productivity. For example, devices that provide real-time data to employers can notify an employer if an employee is not meeting productivity requirements or goals by indicating that the employee has not moved in a certain period of time. If a supervisor is required to check in on her employees throughout a building once each hour, a wearable device could indicate if the supervisor is taking the required steps to reach each of these employees every hour. Conversely, if staff are supposed to be in one location and are only allowed certain allotted breaks, an employer may want an employee to wear a device to monitor whether that person is following that policy.

Third, many wearable devices can help an employer track employee safety and prevent injury, thereby reducing an employer’s exposure to liability or workplace compensation costs. Injuries in the workplace can result in substantial financial and legal liability, leading employers to carefully consider how to prevent workplace injuries.  For example, some wearable devices have environmental or proximity sensors that can track hazardous temperatures, substances, or conditions to alert an employee to a nearby risk.  Other devices can provide real-time information about the employee’s wellbeing. For example, a smart helmet might detect a significant fall or impact and then notify an employer that an employee may be in trouble.  Other devices provide data regarding an employee’s increased signs of fatigue, heat stress, or cardiac stress.  Others can track an employee’s posture or movement. Belt-worn sensors can track and analyze an individual’s posture and then warn an employee about improper lifting techniques, while electronic exoskeletons can provide physical support for workers who are frequently required to lift or operate heavy machinery.  Companies like PepsiCo provide employees at their facilities with belt devices that notify an employee who is improperly bending, twisting, or reaching. 

Regardless of an employer’s motive, wearable devices are becoming increasingly common in the workplace.  However, under the ADA, employers should keep certain considerations in mind with respect to employees with disabilities.

Disability-Related Inquiries and Medical Examinations

As readers may know, the ADA limits an employer’s ability to make disability-related inquiries and to require medical examinations of their employees.  Under Title I of the ADA, an employer’s disability-related inquiry or medical examination must be “job-related and consistent with business necessity.”  The Equal Employment Opportunity Commission (EEOC) defines a disability-related inquiry as a question that is likely to elicit information about an individual’s disability.  The EEOC defines a medical examination as a procedure or test that seeks information about an individual’s physical or mental health.  An inquiry or examination can meet this standard under three circumstances: (1) an employer has a reasonable belief based on objective evidence that an employee’s ability to perform job functions will be impaired by a medical condition or will pose a direct threat due to a medical condition; (2) an employee asks for a reasonable accommodation and the employee’s disability or disability-related need for an accommodation is not obvious; or (3) such an inquiry or examination is necessary for positions that impact public safety, such as police officers and firefighters. 

If a wearable device collects health-related data, as many do, requiring an employee to wear such a device could constitute a disability-related inquiry or a medical examination under the ADA. Therefore, if an employer requires an employee to wear a device and wearing the device constitutes a disability-related inquiry or medical examination, the employer must meet the “business necessity” standard. An employer may meet that standard if the inquiry or exam is related to a reasonable accommodation request, or if the exam or inquiry is related to a concern about whether an employee can fulfill the essential job functions, despite a medical condition or disability.

In May 2016, the EEOC published a rule regarding employer wellness programs.  This rule amended certain regulations and guidance that implements Title I of the ADA with respect to employer wellness programs in particular.  Under this rule, employers may ask individuals with disabilities certain questions or request medical examinations, both of which can be disability-related, as part of a voluntary wellness program that promotes health and disease prevention, among other things.  However, the program itself must be voluntary, and employers cannot require these kinds of examinations under these circumstances. As discussed above, many employers offer wearable devices to their employees as an optional benefit to help improve health and lower insurance costs. Under the ADA, if employees are not required to participate in the program nor penalized for declining to participate, the program is considered voluntary.  Under a voluntary program, an employer may make a disability-related inquiry or conduct a medical examination without violating the ADA because the employee could refuse to participate in the voluntary program with no employment repercussions.  However, any information gathered through voluntary wellness programs must be kept confidential and separate from an employee’s personnel file. 

Employers who seek to use the data that wearable devices provide to make employment decisions should carefully consider how to use and store this data. As a preliminary matter, employers must keep any data from wearable devices confidential and separate from an employee’s personnel file regardless of whether such devices are used as part of a wellness program, under the business necessity standard, or for any other reason. For example, examining the data from a wearable device, concluding that an employee has a health condition, and subsequently firing the employee because of that condition could be a violation of the ADA. Wearable device data from a voluntary wellness program thus should not be included with personnel data and should not be used to make any personnel-related decisions, such as offering a promotion or terminating an employee’s position.

Privacy Concerns

If an employer requires employees to wear certain wearable devices as part of their work duties, it may implicate a variety of privacy, informed consent, and data security issues.  These issues do not fall squarely within the scope of the ADA, so they will not be discussed within this report. 

Considerations for Employees With Disabilities

Can my employer require me to use a wearable device?

Broadly speaking, employers may require their employees to use wearable devices in some circumstances. As discussed above, employers who require their employees to use wearable devices must demonstrate that the device is job-related and consistent with a business necessity if the device involves a disability-related inquiry or a medical examination. If an employer has indicated that a wearable device is required but cannot meet the business necessity and job-related standards, the employer may be in violation of the ADA. An employee can inquire as to whether the device is jobrelated and consistent with a business necessity. If an employer requires an employee to wear a device and does meet the business necessity standard but an employee nevertheless has disability-related concerns, an employee may request a reasonable accommodation to be exempt from the requirement to wear the device.

As many readers know, under Title I of the ADA, employers are required to consider reasonable accommodation requests from employees with disabilities.  A reasonable accommodation is a “change or adjustment to a job or work environment that permits an employee with a disability to perform the essential functions of a job or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.  An employer violates the ADA when it fails to provide a reasonable accommodation to the known physical or mental conditions of an employee with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. 

When considering a reasonable accommodation request that is not obvious, an employer should typically engage in an interactive discussion with the employee to identify a reasonable accommodation.  If an employer requires employees to wear a wearable device, an employer must still consider accommodation requests in which an employee asks not to wear such a device. As with all reasonable accommodations, an employee must still meet the requirements of the job with the requested reasonable accommodation in place.  In the context of the business necessity standard, even if an employer can meet this standard with respect to a wearable device, employers must still consider reasonable accommodations and consider alternatives for an employee who asks not to wear a wearable device due to a disability.

How can my employer use the data from a wearable device?

As discussed above, employers collecting information through wearable devices must ensure that any data that they collect is maintained confidentially and separately from an employee’s personnel file. Employers must fully inform their employees about what data the devices are collecting, how the employer will use that data, and who will have access to the data.  Once employers have this data, they may not use it to make employment decisions that would negatively impact an employee. If employers collect data from wearables, they must store this data in separate medical files and treat it as confidential.  For example, an employer likely could not collect data from employee Fitbits and then post it in a communal place for continuous monitoring by other employees. Further, employers also may not use data collected from wearables to treat employees with disabilities differently. If an employee sees any such activities occurring, an employee may contact their employer’s personnel or human resources contact to discuss possible problems under the ADA. Employees with disabilities who have privacy or data concerns about wearable devices, but are not exempt from wearing them or eligible for a reasonable accommodation, can ensure that their employer keeps the data confidential and can consider leaving the device at work such that it only monitors the employee during work duty hours.

Conclusion

As with many twenty-first century technological advancements, there is still much to learn about wearable devices in the workplace. Wearable devices can offer enhanced worker safety based on real-time physiological or environmental monitoring or decrease employer health costs and increase employee well-being through incentive programs. Such benefits have the potential to decrease employee injury, increase employee productivity, and mitigate workplace risks. However, offering or requiring employees to use wearable devices presents important considerations under the ADA. The concerns surrounding disability-related inquiries and how wearable device data is stored and used are important issues for employers to keep in mind.