EEOC Issues New Guidance on Wearable Technologies: Key Points for Employers

As more employers incorporate wearable technology in the workplace, including those enhanced by artificial intelligence, the Equal Employment Opportunity Commission (EEOC)’s new fact sheet “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” offers important considerations for employers.  The EEOC explains how employers can navigate the complexities of using wearable technologies while ensuring compliance, primarily, with the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and to a lesser extent, Title VII and GINA.

What Are Wearable Technologies?

Wearable technologies, or “wearables,” are electronic devices that are designed to be worn on the body. These devices are often embedded with sensors that can track bodily movements, collect biometric information, monitor environmental conditions and/or track GPS location. Common examples of wearables include:

• Smartwatches
• Fitness Trackers
• Wearable Cameras
• Continuous Glucose Monitors
• Smart Rings
• Environmental or Proximity Sensors
• GPS Devices
• Other aids

Other examples of wearables that are beginning to be used in the workplace include smart glasses and smart helmets that can measure electrical activity of the brain referred to as electroencephalogram or “EEG” testing or detect emotions.  Exoskeletons are also being used to provide physical support and reduce fatigue.

Wearables in the workplace may implicate federal and state employment, data privacy, AI, and potentially other laws when employers require employees to wear them or if the information collected from the employee’s wearable is reported to the employer.

Key Considerations From the EEOC Guidance

The EEOC’s new guidance outlines several important considerations for employers using wearable technologies with employees:

1. Medical Examinations and Disability-Related Inquiries: Employers using wearables to collect information about an employee’s physical or mental conditions, such as blood pressure monitors or eye trackers, may be conducting “medical examinations” under the ADA. Similarly, directing employees to provide health information in connection with using wearables may constitute disability-related inquiries. Under the ADA, medical examinations and disability-related inquiries are strictly limited to situations where they are job-related and consistent with business necessity such as in connection with a request for reasonable accommodation, in connection with a concern about whether an employee’s ability to perform essential job functions is impaired by a medical condition, or when there is a concern the employee may pose a direct threat of serious harm to their own or others’ health or safety due to a medical condition. In addition, medical examinations and inquiries are also permitted when required under a federal law or safety regulation (i.e. DOT or OSHA requirements), when conducted as part of a periodic examination of employees working in certain positions affecting public safety that are narrowly tailored to address specific job-related concerns (i.e. police officers, firefighters), or when made as part of voluntary wellness programs. A disability-related inquiry is a question(s) that is likely to elicit information about a disability. There are a variety of factors considered in determining whether a test or procedure is a medical examination, but generally speaking, a medical exam is defined by the EEOC as a procedure or test that seeks information about an individual’s physical or mental impairments or health.
2. Confidentiality: Any medical or disability-related data collected from wearable devices must be kept confidential and stored separately from the employee’s personnel file. This information should only be shared with individuals who need to know it for legitimate business reasons consistent with the requirements of the ADA and PWFA.
3. Non-Discrimination: Employers must ensure that the use of wearable-generated information does not lead to discrimination based on a protected characteristic such as race, color, religion, sex, national origin, age, disability, or genetic information. For example, the EEOC explains that using heart rate data to infer pregnancy and then making adverse employment decisions based on that information could violate EEO laws.
4. Reasonable Accommodation: Employers may need to make exceptions to a wearables policy as a reasonable accommodation under Title VII (religious belief, practice, or observance), the ADA (disability), or the PWFA (pregnancy, childbirth, or related medical conditions). For example, this could include providing an alternative for employees needing accommodation due to pregnancy, disability or a conflicting religious belief.
5. Accuracy and Validity of Data: Employers should consider the accuracy and validity of the data collected by wearables, especially across different protected bases. Inaccurate data that disproportionately affects certain groups could lead to discriminatory practices. For example, the EEOC explains that relying on wearable technology that produces less accurate results for individuals with dark skin could lead to adverse employment decisions against those workers.

This overview highlights the key points from the EEOC’s new guidance. Employers should review the full guidance to ensure compliance and consult with legal counsel if they have specific questions or concerns. In addition to compliance with discrimination laws, the adoption of wearables and other emerging technologies in the workplace to manage human capital raises a number of additional legal compliance challenges including privacy, occupational safety and health, labor, benefits and wage-hour compliance to name a few.  

Courtesy of Jackson Lewis P.C.

EEOC Issues Final Regulations to Implement the Pregnant Workers Fairness Act

The Equal Employment Opportunity Commission (EEOC) has issued final regulations and Interpretative Guidance to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023. The PWFA requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The PWFA required the EEOC to publish final regulations by December 29, 2023. However, the EEOC did not issue final regulations until April 15, 2024.  The final regulations are slated to be published in the Federal Register on April 19, and will go into effect 60 days after publication.  The final regulations were issued after over 100,000 public comments were submitted in response to  the proposed regulations.

In the final regulations the EEOC clarifies, and in some instances, expands upon the circumstances in which an employer must reasonably accommodate an employee, absent undue hardship. The following is a list of some of the issues addressed in the 400+ pages of final regulations.

• Like the proposed regulations, the final regulations cover a wide range of conditions related to pregnancy, including, fertility and infertility treatments, carpel tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia.
• The final regulations significantly maintained the list of reasonable accommodation requests that will almost never impose an undue hardship, including permitting employees to carry or keep water nearby, take breaks as needed to eat and drink, and permitting work to be done while sitting instead of standing or vice versa.
• The final regulations clarify the definition of a “qualified individual” as one who can perform the essential functions in the near future.  In the case of a pregnant employee, the presumption is the employee can perform the essential functions “in the near future,” within 40 weeks of suspension of the job function.  For conditions other than current pregnancy, the regulations do not impose a 40-week limitation.  However, the final regulations clarify a request to indefinitely suspend an essential function is not “in the near future” so as to entitle an employee to an accommodation.
• The final regulations further restrict the documentation and information an employer may require to support a request.
• The final regulations state it is a best practice to provide an interim accommodation to an employee under the PWFA, and may mitigate against a claim of delay by an employee.
• The final regulations also clarify there is no right to a reasonable accommodation under the PWFA based upon an individual’s association with someone else who may have a PWFA-covered limitation, or even if the individual themselves has a physical or mental limitation arising out of someone else’s pregnancy, childbirth or related medical condition.
• The final regulations clarify that time for bonding or for childcare is not covered by the PWFA.
• The final regulations also include extensive Interpretative Guidance as an Appendix, which address the major provisions of the PWFA and explain and illustrate how the final regulations will apply.  

If you have any questions about the PWFA or the implications of the regulations for your organization please let us know.

Reminder: Update Your EEOC Poster and Start Complying with the Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) goes into effect on June 27, 2023. The PWFA requires employers to post a notice describing the various protections under the new law.  On June 27^th, employers should remove their old EEOC “Know Your Rights” posters and replace them with the updated version. Please let us know if you need a copy of the updated English or Spanish posting to comply with the PWFA.