As Wearables In the Workplace Spread, So Do Legal Concerns

The issue, as the following article explains, is not necessarily the collection of data; it's the use to which that data is put that raises ethical and legal questions.

The presumption is that if you are going to be subjected to evaluation that may have an impact on your job, your health care, your insurance costs, your qualification for a mortgage and other essential life/expense issues, than you should be informed beforehand and possibly even be given the right to opt out.

Apple's resistance to iPhone decryption only scratches the surface of much broader - and deeper - concerns about data, especially who owns it and who can use it for what purposes. JL

Patience Haggin reports in the Wall Street Journal:

Devices can monitor employees’ health, track their locations. How are companies allowed to use that data?
Wearable devices, like the Fitbits and Apple Watches sported by runners and early adopters, are fast becoming tools in the workplace. These devices offer employers new ways to measure productivity and safety, and give insurers the ability to track workers’ health indicators and habits.
For companies with large workforces, the prospect of tracking people’s whereabouts and productivity can be welcome. But collecting data on employees’ health and their physical movement can trigger a host of potential ethical and legal headaches for employers.
Some companies already encourage employees to wear fitness trackers as part of optional corporate wellness programs. Employees can share their step counts or hours of sleep with their employer or health-insurance provider, usually allowing the employer to get preferential terms on employee insurance.
About 40% to 50% of employers with a wellness program use trackers, says Kelly Fenol, vice president of operations at Spire Wellness, an Indianapolis-based company that designs and runs corporate wellness programs.
But the tracking plans are strictly optional, she says. And employers are generally careful to keep their hands off the data, often by hiring a third-party provider to maintain it and only receiving anonymized data themselves.
Can employers legally mandate the use of on-the-job wearables? Lee Tien, a senior staff attorney for the Electronic Frontier Foundation, a digital-privacy advocate, says they likely can, within limits. Still, he adds, collecting as little data as possible would be employers’ best bet to avoid privacy challenges. “We [at EFF] are not big fans of the collect-it-all mentality.”

Legal issues

Employers who mandate wearables should provide a policy stating the job-related reason for collecting the data and the limits on its use, says Jason Geller, a partner at law firm Fisher & Phillips LLP who represents employers in labor and discrimination disputes.
As employers turn to productivity data to justify raises, promotions and firings, such data likely will become key in employer-employee litigation, he says. If less active employees are being penalized, employees might bring a claim that the company is discriminating against less healthy employees or those with a disability.
Claims under the Americans with Disabilities Act might be the greatest risk for employers who collect activity data, says Philip Gordon, co-chair of the privacy practice at employment law firm Littler Mendelson PC.
For example, if a warehouse employee does poorly on tracked activity measures on the job, the employer might need to consider whether the data could indicate a physical disability that would require the employer to make a reasonable accommodation.
“The employer may need to ask itself, ‘Do I need to initiate a discussion with this employee about whether the productivity was related to a disability?’ ” says Mr. Geller.
Even if an employee doesn’t speak up about a disability, there is legal precedent for holding employers responsible if they had enough information to recognize the problem. Thus, possessing a detailed activity log may place the employer in a position of having to prove ignorance of the disability, Mr. Gordon says.
Edward McNicholas, a partner at law firm Sidley Austin LLP who counsels companies on data privacy, says one of his clients is a defense-contracting firm where employees have their retinas scanned to enter a secure facility. Mr. McNicholas says the company confronted this hypothetical: If the scans showed symptoms of diabetes, should it notify the employee?
Some might say the employer has a duty to warn the employee, but others might see this as an invasion of privacy. Mr. McNicholas says he advised his client to inform employees in such a case.
But does such an employer have a duty to test for illness? Mr. McNicholas says he doubts courts would consider that reasonable. It is easy to imagine some tests will become so inexpensive companies might be willing to conduct them as a matter of routine. But, he says, employees should have the right to opt out.
“The only thing that is clear is that we are at the cusp of what could be a dramatically different relationship between employers and employees,” Mr. McNicholas says.

Spying concerns

With devices that record audio, video or location data, employers will need a firm policy on when to switch them off. For example, if an employee wearing a device attends a union meeting during a break with a recording feature on, the employer might be accused of spying on the meeting. Or, if the devices tracked employees’ precise locations, then the record could tell employers exactly who attended the union meeting.
To avoid these concerns, Stan Hill, an employment law associate at Polsinelli PC, says employers should disable or require employees to surrender the devices outside of working time.
Concerns multiply with devices that collect data on others besides the employee. Atheer makes augmented-reality headsets for work. Surgeons have piloted the technology to view charts and patient data mid-operation without contaminating their hands or leaving the operating room.
The headsets can record audio and video chronicling exactly what the surgeon sees. But hospitals would need to make sure the patient has signed all the needed releases to use this feature, says Atheer Chief Executive Alberto Torres. And in states that prohibit recording unless all parties consent, recording audio would require consent from every aide in the operating room.