Do Fitbits come with workplace privacy concerns?

Fitbit wristbands are pictured in this stock photo by Getty Images.

With the greater use of Fitbits and other wearable technology that can measure a person’s health and activity levels, more employers are embracing the trend as part of workplace wellness programs.

Group competitions, for example, might see employees outfitted with fitness trackers so they can monitor their daily activity levels and compare them to other groups, both inside and outside the company.

In the United States, at least, this trend has caught the eye of federal regulators. The Equal Employment Opportunity Commission (EEOC) has issued a proposed rule that would amend the regulations and interpretive guidance implementing part of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs — and data gathered as part of a company-sponsored fitness program could fall under the proposed rule.

The collection and use of this data, even if done by a third party, should be done with care, according to Canadian experts.

“Employers are going to have to use caution, make sure that whatever they’re doing is reasonable, make sure that consent is obtained from employees and is not coerced or obtained under duress, it’s not forced on them, and they’re going to have a role in making sure that employees understand what is being collected and how it will be used,” said Éloïse Gratton, a partner at Borden Ladner Gervais in Montreal.

Consent

While there is privacy legislation federally and in some provinces (including British Columbia and Alberta) around the collection of personal information, the general rule is employers can collect what a reasonable person would consider appropriate in the circumstances, said Deborah Cushing, a partner at Lawson Lundell in Vancouver.

“If you’re collecting this information as part of a fitness program, to me, that doesn’t seem as something that a reasonable person would think you need to manage the employment relationship — it’s more an add-on,” she said.

“So if the employer is collecting that information, they should have the consent of the individual to collect this specific information and identify what that information is going to be used for and who it might be disclosed to.”

And employers should be sensitive about implementing the program, recognizing a fitness-tracking competition may not be for everyone, said Cushing, so it’s better to have an opt-in program versus an opt-out one.

“(Opting out) can create some discomfort for people if they have to identify, for whatever reason, ‘I don’t want to participate in this,’” she said. 

That also raises potential human rights issues — if someone has a hidden disability, for example, and hasn’t disclosed it at work but other team members are encouraging him to participate, said Cushing.

“It may make it uncomfortable for that person and they don’t have to disclose it because it’s not really necessary for employment, it’s an add-on. So I think employers should be sensitive about how they do this… though it sounds like it’s for a very good purpose, you’d want to be cautious or careful as to how you design it so it has the desired effect.”

These types of issues are going to come up, said Gratton, and it’s always going to come down to: Was the employer transparent when it collected the information and is this information necessary for the employer? 

In the end, data collected through devices such as health-tracking bracelets should be treated the same way as other personal data collected by an employer, said Matthew Pearn, a lawyer at Foster & Company in Fredericton.

“Most privacy legislation that relates to an employer’s gathering of medical information would likely extend to any biometric data that was gathered — for example, from an employee, so if you were keeping track of someone’s blood pressure, heart rate, blood sugar, any of those things — through these activity trackers… that information would, in my mind, be subject to the same kind of restrictions that would be put on an employer if they had private medical information that had been provided to them through other ways.”

— this is an edited version of an article that originally appeared on Canadian HR Reporter
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