Canadian HR Reporter

CANADIAN HR REPORTER August 10, 2015 NEWS 7 but it's not necessary, it's not nec- essarily reasonable to collect this kind of information,'" she said. "Employers are going to have to think about these issues first in- stead of running with this data, saying nothing to employees and making decisions that may have an impact on these employees. ey need to be transparent and they need to ensure they comply with human rights and privacy laws — that's going to be their challenge." 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 gather- ing of medical information would likely extend to any biometric data that was gathered — for ex- ample, from an employee, so if you were keeping track of some- one's blood pressure, heart rate, blood sugar, any of those things — through these activity track- ers… 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." Litigation People are very excited about this newer technology but the type of information being collected can be quite sensitive and it could be used in the context of litigation, so that's something employees need to be made aware of, said Gratton. "I'm not sure everybody under- stands the implications." For example, if an employee is using a Fitbit and the employer has access to the data, it may con- front the worker when she claims she was working overtime or she was sick, and the tracking device shows she was doing a physical activity. "Employers and employees are going to have to have a transpar- ent discussion and make sure that they agree on the framework, the lines that should not be crossed," she said. "In the context of litigation, if there's information sitting there that could be useful, usually law- yers will request from the court authorization to access it and they'll get it, so it's something to keep in mind — you're using a tool that will be tracking you 24-7." An employer has an obligation to maintain privacy over the infor- mation but if the employee, for ex- ample, is engaged in a civil claim of some kind, the fact that there is this documented history of his activity — whether collected by himself or through his employer's wellness program — is something that can be disclosed as part of a civil claim, said Pearn. If an employer tells employees this is part of a fitness promotion activity, it really shouldn't be us- ing it for other purposes, said Cushing. "I shouldn't be using it to man- age someone's performance or say, 'Oh, you didn't show up for work today but I see on your Fitbit that you were, by the GPS locator, here's where you were.' at would be inappropriate," she said. "And if you're in a unionized workplace, I mean, you're defi- nitely going to cross some lines if you do that because there's a number of labour arbitrations where employers have collected certain information and tried to use it, say, for performance man- agement and that has not been looked at favourably." Security concerns When it comes to personal infor- mation that's particularly sensi- tive, such as blood pressure, em- ployers should make sure there are adequate security measures to protect it so people can't hack into it or use it for purposes that aren't appropriate or sell to marketers, said Cushing. "Under privacy legislation, there's also obligations to destroy information after it's met its pur- pose, so if employers are collect- ing this information, they don't want to have it around forever. So either you destroy it after it's fulfilled its use or if you're using it for a particular decision about an employee or individual." Data in aggregate is useful as it can provide a lot of infor- mation upon which to make better-informed decisions — but the tricky part is it could poten- tially be identifiable, said Gratton. For example, in small groups, certain employees could be iden- tified in the data. "Using information in aggre- gate is one thing — making sure it cannot be linked back to a small group or an individual." It's possible employers may col- lect this amalgamated informa- tion as a way to decrease the cost of group insurance by showing the activity levels of employees, said Pearn. "ere are benefits to the in- surer — it's just a matter of mak- ing sure that they've removed all identifying information so no individual's personal information becomes disclosed in the process." Looking ahead Looking ahead, third parties, such as insurance companies or employers, could require that employees undergo assessments through these fitness trackers, said Gratton. For instance, insurance compa- nies could offer better premiums to individuals who agree to be tracked. Organizations could also de- cide to provide employees with fitness trackers to potentially re- duce corporate plan insurance premiums. "ese type of activities would have to comply with Canadian data protection and human rights laws," she said. Any identifying information should be removed CONCERNS < pg. 3

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