Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

Can a Florida business make employees use wearable tech like tracking devices?

Bob’s employer tells him that he must wear a company-issued tracking watch. The watch collects Bob’s vital signs, information about his gait, and other medical information. Is it legal to require Bob to wear this watch?

Probably not.  It does not satisfy the American with Disability Act (ADA)’s requirements for employee health programs that are voluntary, and it also may be a medical examination under the ADA.

For sake of argument, let’s assume that the wearable watch is legal.  If an employer uses wearable-generated information to make employment decisions that have an adverse effect on employees because of a protected basis, they could violate EEO laws.  

The EEOC recently provided Florida Employers with the following examples of illegal use involving wearable technology:

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 to make adverse employment decisions against those workers (race or color discrimination). 

- Firing an employee based on an elevated heart rate when the elevated heart rate results from a heart condition (disability discrimination).

- 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 (GINA violation). 

- 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. 

No selective use:

In addition, a Florida employer may not selectively use wearables to monitor some employees based on a protected characteristic or in retaliation for an employee engaging in protected activity. For example:

- Requiring only Hispanic employees to use wearables that collect health information: the disparate treatment of Hispanic employees based on their national origin could violate EEO nondiscrimination requirements.

- Increasing surveillance or scrutiny of employees who assert their rights in order to retaliate against them for engaging in protected EEO activity, without similarly monitoring other workers.

Finally, a Florida employer could violate the EEO laws’ nondiscrimination requirement by using wearable-generated information for employment decisions that have a disproportionately large negative effect on the basis of race, color, religion, sex, or national origin (disparate impact discrimination).

Reasonable Accommodation Related to Wearables

An employer in Florida also may need to make an exception to a wearables policy as a reasonable accommodation under Title VII (religious belief, practice or observance), the ADA (disability) or the Pregnant Workers Fairness Act (pregnancy, childbirth, or related medical conditions), even if the ADA were to allow the Florida employer to use wearables to collect medical information.

For example: 

- Even if an employer in Florida complies with the ADA’s limitations on collecting medical information, the employer may need to excuse an employee from wearing a device if doing so is against the employee's religion, or provide an alternative; and

- An employer mandating use of a wearable device for reasons that comply with the ADA’s limitations on collecting medical information still may need to make an exception or provide an alternative as a reasonable accommodation based on pregnancy or disability. 

What are some other examples of wearable tech?

Wearable technologies, or wearables, are devices worn on the body and can vary in size, shape, and function. Some Florida employers have an increasing interest in using wearables to improve worker safety and productivity. Industrial uses fall into four general categories:

(1) supporting devices physically assist workers with tasks like lifting (e.g., exoskeletons and powered gloves);

(2) monitoring devices alert workers to specific changes in vital signs or the workplace environment (e.g., smart helmets);

(3) training devices provide feedback on movements (e.g., ergonomic sensors) or help improve worker performance (e.g., augmented reality (AR) glasses); and

(4) tracking devices observe the location of employees on a worksite (e.g., GPS trackers). See figure 1 for examples.

Privacy concerns exist because monitoring devices can store data on employee physiology and movements. For example, employees surveyed as a part of a wearable pilot test cited concerns about being tracked.  Also, the data stored on wearables may be vulnerable to hackers because updating software can be difficult and many devices lack strong encryptions.

Florida employers who have questions about properly paying employees the minimum wage should contact an Employment attorney such as Mr. Miklas by email or calling 1-772-465-5111.

You can read more of our employment law articles on our legal updates page.

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