The Takeaway: Feds eye new rule for workplace wearables

Companies that use wearables as part of their workplace wellness programs may soon have to make room for another player: The federal government.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a proposed rule that would amend parts of the Americans with Disabilities Act (ADA) of 1990 as it relates to wellness programs used by more than half a million U.S. companies. Public comments are being accepted through today.

At issue is the data that’s collected from wearables and whether it qualifies as simple health data — such as the number of steps a person takes each day for a wellness program — or medical data, such as a person’s heart rate. The latter could be held to higher levels of privacy, something that companies say could endanger their wellness programs.

Although the EEOC proposal doesn’t call out specific devices like a Fitbit, Jawbone or smartwatches like the Apple Watch, many such devices and fitness apps record a person’s heart rate during a workout or over several workouts. What happens to that information is at the heart — pun not intended — of the EEOC move.

The issues already raised about the proposal include:

• Concern that it would drive up costs. Data management firm Iron Mountain, which has 1,600 workers using a variety of wearables to collect data for a corporate LiveWell wellness program, said it could be forced to scale back its program or kill it completely. “Our recourse [if the rule is implemented] would probably be to eliminate this [wellness] plan or dramatically increase employee cost-sharing for it…,” said Scott Kirschner, director of benefits strategy at Iron Mountain.
• Fears that fitness devices and wellness programs could be used to push workers to join wellness programs whether they want to or not. (Half of all U.S. shipments of fitness bands go to companies, which rely on them to promote wellness plans, according to Forrester analyst JP Gownder.) “There may be instances where people are ostracized for not participating in a wellness plan, and they may pay more for insurance,” Gownder said.
• Annoyance at some firms about what is seen as another layer of federal bureaucracy added atop rules already in place through the Affordable Care Act and HIPAA. “Employers are up in arms about this proposed rule,” said Timothy Collins, a lawyer specializing in employee benefits with the law firm Duane Morris LLP. “I think wearables would be subject to the rule, especially if employers are handing them out for free and using them to gather data on the habits of workers.”

It’s not immediately clear when the EEOC will decide on how to proceed. The agency hopes to offer guidance to companies on how they can use financial and other incentives to get workers into wellness programs. Collins predicted the EEOC would study the public comments and likely not act until sometime next year.

With reports from Matt Hamblen at Computerworld.