This post was co-authored by Labor + Employment Group lawyer Christopher Costain.

In recent years, certain manufacturers are requiring workers to use wearable technologies at work to increase efficiency and productivity and mitigate health and safety risks. Although the use and application of wearable technology continues to expand and change the manufacturing industry landscape, the employment law implications remain the same, and should be a key focus for manufacturers exploring use of such technology.

Wearable Technologies: What Are They?

Wearable technologies are smart devices worn by manufacturing workers that collect and transmit information and perform important efficiency and safety-focused functions.  Common wearables include smart helmets (which provide enhanced head protection, fatigue monitoring, hazard identification, and augmented reality features), vests and other smart clothing (which transmit real-time vital sign monitoring to workers to mitigate heat and stress-related health risks), and ergonomic sensors (which monitor a worker’s body position to ensure proper lifting, carrying, and transfer techniques to reduce the risk of work-related injuries). Most wearable devices incorporate global positioning system (GPS) monitoring so that the device is also able to warn workers of pertinent safety risks or make relevant recommendations based on where the worker is located within a facility with respect to lifting, sorting, and retrieving tools, equipment, finished goods, and other materials. For example, a worker retrieving materials near a highly trafficked area of a warehouse may receive an audible warning to be aware of nearby forklift or other machinery activity.

Employment Law Risks and Challenges

Notwithstanding the benefits of such technology, these devices also create legal risks and challenges of which manufacturers should be aware as they look to implement or expand the use of these technologies. First, manufacturers that monitor workers’ vital signs, such as blood pressure or heart rate, using wearable technologies, or that require workers to disclose personal health information in connection with wearing certain smart devices should be aware that such practices may implicate the Americans with Disabilities Act (ADA) or other federal and state laws. To provide background, the ADA limits an employer’s ability to make “disability-related inquiries” or require “medical examinations” unless they are job-related and consistent with business necessity. Employers are also prohibited from using information collected from wearable technologies to make adverse employment decisions that impact workers based on their protected characteristics; for example, an employer may not use the biometric data, or the unique and measurable characteristic of the human body, such as heart rate variability, blood pressure fluctuations, or activity and stress levels, collected from an employee’s wearable technology to infer that the employee has a medical condition, such as diabetes, and then subject the employee to disparate treatment because of their medical condition. The ADA further requires employers to store medical information, which may include biometric data collected by a wearable device, in a confidential medical file separate from the employee’s personnel file. 

Wearable technologies also implicate various privacy, surveillance, and security related concerns as it pertains to the collection, monitoring, and storage of employee biometric information. For example, manufacturers considering the use of smart glasses, which assist workers in identifying potential safety hazards or completing a task in the most efficient manner, should be mindful that workers may inadvertently record other employees in private areas, such as a restroom or locker room, or record conversations, and thereby improperly collect information about other workers, which may implicate state privacy, workplace surveillance, or other laws. Additionally, as noted above, the ADA and state law requires that employee medical or disability-related information be stored in a separate confidential medical file. Although many wearable technologies use GPS as described above to warn workers of potential hazards, workers may view these features as an invasion of privacy as they take rest or meal breaks or use the restroom during their shift. Lastly, manufacturers should also be mindful of the importance of data security which may include certain wearable devices and the biometric information they collect. As the use of wearable technologies continues to expand and increase productivity, manufacturers should be aware of these important employment law issues that may be implicated.

Manufacturers should consult competent employment counsel for assistance with ensuring compliance with federal and state anti-discrimination laws and other important employment law issues.