Canadian HR Reporter

CANADIAN HR REPORTER August 10, 2015 NEWS 3 Stepping with caution Privacy, human rights concerns arise with wearable wellness technology BY SARAH DOBSON WITH the greater use of Fitbits and other wearable technology that can measure a person's health and activity levels, more employ- ers are embracing the trend as part of workplace wellness programs. Group competitions, for ex- ample, might see employees out- fitted 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 Com- mission (EEOC) has issued a pro- posed rule that would amend the regulations and interpretive guid- ance 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. e collection and use of this data, even if done by a third party, should be done with care, accord- ing to Canadian experts. "Employers are going to have to use caution, make sure that whatever they're doing is reason- able, make sure that consent is ob- tained 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 con- sider appropriate in the circum- stances, said Deborah Cushing, a partner at Lawson Lundell in Vancouver. "If you're collecting this infor- mation as part of a fitness pro- gram, to me, that doesn't seem as something that a reasonable per- son would think you need to man- age the employment relationship — it's more an add-on," she said. "So if the employer is collect- ing that information, they should have the consent of the individual to collect this specific information and identify what that informa- tion is going to be used for and who it might be disclosed to." And employers should be sen- sitive 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. at also raises potential hu- man rights issues — if someone has a hidden disability, for exam- ple, and hasn't disclosed it at work but other team members are en- couraging 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 employ- ers 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 care- ful as to how you design it so it has the desired effect." ese 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? "Many privacy regulators could say, 'No, you're providing benefits ANY > pg. 7 An InBody Band fitness bracelet is displayed during a consumer electronics show in Las Vegas in January. The band can monitor a variety of activities and measure body composition. Credit: Steve Marcus (Reuters)

• Cover