Yielding to a moment of childlike joie de vivre, a construction worker on a school renovation site slid about 16 feet down the stairway bannister.

Alerted by the array of sensors in the worker’s wearable tracking device and fearing a fall, the safety supervisor sped to the location the device’s real-time interior location services indicated. He found the worker calmly proceeding with his work, according to an anecdote related by Peter Schermerhorn, chief operating officer for Triax Technologies, which makes wearable technologies for construction site safety.

Rather than broken bones and a hefty workers’ compensation claim, the worker’s only injury was to his pride as he submitted to a gentle reminder of the company’s safety culture and some less-gentle teasing from his colleagues.

The story, however, could just as easily have had a darker ending, said public interest attorney Harvey Rosenfield, founder, Consumer Watchdog. The worker could have been fired for his momentary, presumably private lapse.

Alternatively, the wearable device could have captured biometric data suggesting a congenital heart defect, leading to his dismissal or making him ineligible for health insurance in the future due to a pre-existing condition.

The tension between the benign, putative use of collected data and its potential for misuse could redefine the relationship between employers, employees and insurers, said Edward McNicholas, a partner at Sidley Austin LLP. McNicholas counsels companies on data privacy.

The degree to which companies can successfully collect data pivots on trust. Companies must be transparent about what data they’re collecting and how they will use it, said Bill Spiers, vice president, risk control consulting practice leader, Lockton Companies. Spiers says pre-loss data technologies are “exciting tools to prevent injury” but he sees the potential for litigation if they’re misused.

Bill Spiers, vice president, risk control consulting practice leader, Lockton Companies

“If you get buy-in from workers, compliance isn’t a problem. When you bait and switch, that gets to be a problem in the workplace. Responsible companies embrace the fact that their employees are their most precious asset,” Spiers said. “They want employees to go home as they left.”

Successful workplace surveillance programs depend on “a unified, coherent, non-hypocritical approach,” said Lee Tien, senior staff attorney, Electronic Frontier Foundation.

Spiers sees “only a bright future” when companies keep trust with their employees. But when they break it, he said, not only will employees push back, but the data collected may not even be very useful in workers’ compensation cases. “There would be sensitivities because workers’ comp claims are regulated and adjudicated.”

Responsible use will also foster more product development and adoption of tracking technologies, said McNicholas. “If the employer explains what data is to be collected and how it is to be used, and employees trust that it’s used as described, more of these technologies will be adopted.”

Prevention and Recovery Benefits

Wearable tracking technologies have applications both in wellness and injury prevention and treatment, and many are time-tested and accepted, such as the personal dosimeter radiation technicians attach to their scrubs to monitor exposures and the GPS firefighters wear in case they’re trapped in a blaze.

“The purpose of the technology is to drive a safer environment, to look at how workers do their job,” said Zack Craft, vice president, rehab technology and complex care, One Call.

On the rehabilitation side, he said, a tracker could collect data on stress to an injured worker’s shoulders as he propels his wheelchair. This could lead to a decision to give him a scooter, hastening his recovery.

“If you get buy-in from workers, compliance isn’t a problem. When you bait and switch, that gets to be a problem in the workplace.” — Bill Spiers, vice president, risk control consulting practice leader, Lockton Companies

Wearable technologies are a great tool for ergonomists to engineer risk out of tasks and to train workers, said Spiers.

Through electric leads attached to large muscle groups, ergonomists can measure strain and muscle demand during high-risk tasks.

“They get the data, compare it with videotapes of the job, and make strategic decisions about what part of the job is problematic.” A manufacturer of foam products, for example, conducted a pilot study with DorsaVi, which manufactures technology that measures human movement.

The company uses the information to decide where to automate and how to train employees, Spiers said. “It’s great information to prevent injuries.”

Ulterior Motives

Telemetrics, used in a similar fashion to wearables, have been successful in changing truck driver behavior, Spiers said. The devices expose swerves, speeding and quick stops. “[Drivers] know they’re being monitored. They comply if they want to drive with these firms.”

Technologies that enhance security and safety, and are not used for surveillance, are helpful, said McNicholas. Or when surveillance is part of safety — as with the telemetrics for truck drivers — “those will take off.”

Edward McNicholas, partner, Sidley Austin LLP

But those that are advanced for one purpose and used for another introduce significant privacy challenges, said Tien.

For example, a GPS may track an employee’s off-duty time at a bar or liquor store. “The employer may conclude that the worker has an alcohol problem and take disciplinary action,” Tien said.

Or a device may capture conversations not intended for management. “It doesn’t take a rocket scientist to figure out how a recording could be used against the worker.”

Companies that don’t self-limit what they do with the often-sensitive data collected by wearables, that don’t care about informed consent, or that pretend they’re collecting data for workers’ own good are asking for trouble, he said.

“If that’s the company’s line, that’s a dangerous way to proceed.”

Rosenfield takes an unequivocal position on protecting consumer and worker privacy.

“Until workers and consumers have a panoply of statutory protections against misuse of data or use of data by insurance carriers to deny claims or coverage or otherwise punish people,” he said, “I don’t think these devices or applications should be permitted.”

The greater the intrusion into workers’ privacy, said Jason Geller, partner, Fisher & Phillips LLP, “the stronger the justification for intrusion the employer must advance.”

Intrusions that save lives and prevent injuries on a worksite would likely pass a court’s test for “legitimate justification,” he said. Intrusions imposed for the employer’s benefit, such as productivity tracking, would be subject to a higher standard.

To mitigate litigation risks, many employers minimize expectations of privacy, Geller said, by stating upfront that they will collect and use data from the wearable technologies, just as they warn employees not to store personal information on company computers. A written policy is wise, he said.

Biometric and health information, which is by its nature private, can create HIPAA-related risk for employers, Geller said. “Employers should decide at the outset what data to collect and for what business purpose.”

Do the analysis on the front end, he advised, and “then only collect bare minimum necessary to advance the business justification.” &