Page 10 - January-February-CBA-Report

Wonder Who’s Watching You Now?
Privacy, Data Security & Workplace Wearables: Best Practices for Employers
By David J. Oberly
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THE REPORT | January/February 2022 | CincyBar.org
Today, tracking your heart rate and glucose levels no longer requires a visit to the doctor’s office; instead, all that is needed is a smartwatch. The rise of wearable fitness devices and applica- tions—equipped with health tracking tools—provides the ability to drastically improve health outcomes across all demographics.
Employers have taken note, particularly with respect to the benefits offered by fitness trackers in terms of lower employee health insurance costs. The popularity of wearables grew precip- itously during the Covid-19 pandemic, as fitness trackers offered employers the ability to greatly enhance trust and wellness in the workplace at a time when employee health concerns were at an all-time high.
But there are also downsides to wearable fitness trackers in the workplace; namely, privacy and data security concerns and liability exposure risks.
Fortunately, by making privacy and data security a staple of employee wellness programs, employers can leverage these trackers in a manner that maximizes their value to the company while complying with the law, boosting worker morale and trust in the process.
Employee Concerns
Fitness trackers have grown immensely in their sophistica-
tion in recent years, with the ability to generate a treasure trove of highly sensitive health data concerning employees. As a result, workers have grown weary of the myriad intimate, personal health details their bosses now have at their fingertips, which may be used inappropriately.
The security of personal data generated by this technology and transmitted to employers is also of significant concern. As just one example, last year Fitbit and Apple announced that the personal data of 61 million users had been compromised because of a data breach suffered by GetHealth, a third-party entity that offers employee fitness incentives.
Employer Legal Risks
In addition to employee concerns—which can significantly hamper workplace morale and productivity—employers also face considerable privacy and data security legal risks as well.
The most significant liability risk to employers comes from the Americans with Disabilities Act (“ADA”), which bars employers from making disability-related inquiries of employees unless those inquiries are job-related and consistent with business neces- sity. This rule applies even where an inquiry does not explicitly seek information about a disability, but nonetheless is likely to elicit such details.