Wearable Technology in the Workplace

Associate, Michael Taylor

I recently purchased an Apple Watch. I purchased it to fully integrate the technology that I used, but also to monitor my fitness and help me set activity goals. Wearable technology, such as an Apple Watch or FitBit, is a great tool for personal data collection. You can buy a device for under $100 that will monitor your heartbeat, count your steps, estimate calories burned, monitor your sleep, as well as a number of other things. All of this data is then available for your review. With access to this data, you can learn more about your overall activity for a day and keep a monitor on your health.

Increasingly, employers are using wearable technology in the workplace in order to boost health, safety and productivity. Specifically, many employers have already sought to incentivize the use of wearable technology in the workplace through wellness program participation. Normally, these wellness programs will result in a lower health insurance premium for the family. Additionally, wearable technology for safety is something that has already been in use for decades. For example, those that work around radiation normally carry a radiation monitor. As a result, wearable technology has and will continue to have a role in the workplace.

Never before, however, has wearable technology been so widely available that can track personal data. Does the employer need to know how much sleep you are getting at night? Or how much strenuous activity you are engaging in off hours? The question becomes, what can this data be used for and what are the risks for employers to collect and/or use this data?

Before considering whether an employer should collect and/or use this data, the first question is whether an employer can collect and/or use this data. While no West Virginia or federal law specifically prohibits the collection of this data by private employers, there are a number of laws that affect its collection and use. The Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination ACT (GINA) may create liability for an employer if certain personal data is used to make employment decisions. Generally, the ADA prohibits discrimination in the workplace based upon a qualifying disability, while GINA prohibits the discrimination in the workplace on the basis of “genetic information.” If data collected relates to the health/wellness and is used in making work place decisions, this may run afoul of ADA and GINA. Because of the rising use of wearable technology, in January 2017, the Federal Equal Employment Opportunity Commission released rules regarding complying with the ADA and GINA while using wearable technology for employer wellness programs.

In addition to the ADA and GINA, the National Labor Relations Act (NLRA) may also add an avenue for potential liability for use of wearable technology. Expanding beyond the fitness tracking element of wearable technology, GPS tracking is also an option with wearable technology. While many companies may already employ some sort of GPS tracking in its workplace, the availability of this option may expand further in the workplace. However, the NLRA prohibits employer surveillance of employees engaging in activity protected by the NLRA, unless there is a legitimate business concern related to the surveillance.

For most employers, the Health Insurance Portability and Accountability Act (HIPAA) does not apply because the employer is not a “covered entity.” However, HIPAA may apply to entities not normally covered by the HIPAA privacy rule if the employer offers a wellness plan as part of a group health plan. If such a wellness program is offered as part of a group health plan, any protected health information (“PHI”) collected from the participants in the plan would be protected under HIPAA privacy rules. As a result, a review of the information collected and stored, as well as the methods to protect disclosure of this information is necessary in order to determine whether the employer is subject to HIPAA and, if so, whether the employer is HIPAA compliant.

When collecting this data, the employer will likely also have to store the data. While saving and storing this data may be useful for many purposes, including potentially in litigation, the employer will need to be aware of the risk of a data breach and its responsibilities should such a breach occur. West Virginia has a specific statute related to data breaches, West Virginia Code § 46A-2A-101, et seq. In the event of a data breach, West Virginia Code § 46A-2A-101, et seq. contains specific procedures that must be followed in notifying those individuals effected by a data breach. Failure to comply with the notice provisions may result in civil penalties.

The final concern related to the collection and/or use of personal data by an employer is one generally of privacy. In the private employment setting, an employee's expectation of privacy during working hours or using office-issued equipment is generally limited. While an employer may have great latitude during working hours and using office-issued equipment, there are still objective and subjective reasonable limits. See e.g. Roach v. Harper, 143 W. Va. 869, 105 S.E.2d 564 (1958) (recognizing the tort of invasion of privacy by an intrusion upon the seclusion of another). However, what about off-hours? Can the employer use wearable technology to collect data and/or use data collected off-hours to make business decisions? What if the employer knows, due to employer issued wearable technology, that the employee did not get any sleep the night before? Because of this, the employer believes that the employee will be less productive, so the employer sends the employee home for the day, docking his/her pay? These are questions that will need to be answered as the use of wearable technology integrates further into the work place.

The above gives you just an overview of the minefield that exists in using wearable technology in the employment setting. As the applications and technology expand related to wearable technology, there will certainly be more options for its integration into the workplace. However, while many employers like to be on the cutting edge of the use of technology in the workplace, any and all such uses must be weighed by the potential risk of legal exposure in the landscape of the current laws and regulations. To conclude, while often times employers can legally take a certain action, the employer must consider whether it should still take that action.

Protecting Patient Privacy When the Court Calls

Associate, Unaiza Riaz

Recently, while reading an article about the #MeToo movement, I started wondering how patient privacy is protected in this context of litigation. Health records are one of the most valuable assets in discovery once they are produced because they provide a profusion of evidence. The repercussions of the discoverability of these records plays an interesting role in this situation. Are victims fearful to receive help because they know doing so could be used against them in Court? How are their rights protected? How do doctors view this problem from their perspective of things? This article will explore the various concerns in this area of discovery in the context of the allegations men and women are raising in the news today.

Let's say Alex and Sam share an office wall at Company X. They have both been employed there for a few months. They are both in the office for around 9-10 hours a day, usually at their desks, and occasionally up and about the office. Recently, Sam has started teasing Alex and making sly, sexual comments via the company's instant messaging system. Further, Sam has repeatedly been asking Alex out for dinner, which Alex has denied. Alex told one of the HR employees about the situation after months of the same behavior. Now, the company is faced with sexual harassment allegations and must begin the appropriate investigation. However, let's say that litigation ensues because Alex alleges that the company did not investigate her scenario properly. During the course of litigation, the company's lawyer seeks Alex's mental health records. In West Virginia, the “recognition of an implied waiver of a privilege is disfavored because of the accompanying infringement upon the right to confidentiality which the privilege is designed to protect. Where, however, a party entitled to a privilege avails himself of the allegedly privileged information in such a way as to reveal its contents to third parties without regard for maintaining the confidentiality thereof, it may be said that such party has effectuated an implied waiver thereof [1].”

The United States Supreme Court's opinion in Jaffee recognized an absolute privilege regarding communications between psychotherapists and their patients, explicitly establishing a federal common law psychotherapist-patient privilege. Jaffee, 518 U.S. at 15. But, in this scenario, as long as the victim puts his or her emotional damages at issue, these communications are fair game during litigation. What does this mean for victims of sexual harassment in the workplace? What kind of persona do these doctors have to emulate in their sessions once their patient has told them that they are suffering distress because of a lawsuit that arose out of sexual harassment? Once the Judge serves a subpoena on the doctor, which she likely will, does the doctor's treatment change, even if he or she does not intend for it to change? Once the doctor knows that everything said in the session will be exposed, how do they treat their client the same? The doctor could argue for potential grounds for limiting production of the client's records; however, most jurisdictions hold a broad patient-litigant exception to privilege.

Some courts have recognized a refusal to pierce the privilege in cases in which the plaintiff alleged only “garden variety emotional distress.” This is defined as a claim of emotional injury for damages ordinarily associated with a conventional claim for pain and suffering. While some circuits go so far as to state that a plaintiff waives the privilege by alleging any type of emotional distress, other circuits indicate that a plaintiff must allege a specific, psychiatric disorder to waive the privilege. In the scenario at hand, Alex's counsel must determine all the treatment she underwent in relation to the incident, carefully review her records, and then determine if it is better to seek damages arising out of the therapy/treatment, or based on what is in the records, seek only general emotional damages, thereby not placing the plaintiff's specific treatment into the litigation. Is this fair? Does this stop people like Alex from freely seeking help for their emotional distress after an incident like this where they had to resort to litigation? And on the other hand, is there any other way the employer here could assess the nature of Alex's claim in order to value the case and carry the suit into fruition?

The reality is that the psychotherapist-patient privilege protects the individual from public consternation of innermost thoughts and feelings that were never meant to be heard in an open courtroom. The privilege makes possible open and therefore productive relationships between therapists and patients, thereby allowing individuals to recover and learn through their experience. But, the “patient-litigant” exception breaks through those protections and importantly, eradicates it altogether. If an incident does occur and a victim is thrown into a similar scenario, it is important for their attorney to consider these points when they are counseling their client about how to proceed.

As the Jaffee Court stated: “Effective psychotherapy … depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.”

[2] Without that, how effective would it even be?

[1] State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 256, 588 S.E.2d 418, 421, 2003 W. Va. LEXIS 80, *1.

[2] Jaffee, at ___, 116 S.Ct. at 1928, 135 L.Ed.2d at 345 (citation omitted).