"Employers are up in arms about this proposed rule," Collins said in an interview. "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." He predicted the EEOC will take time to study public comments and concerns and won't act until well into 2016.
Employers don't want to have more hurdles to overcome, Collins said. "Businesses would like it to be easier to weed out the workers who are raising health care premiums. So I'd expect you'll see challenges from employer organizations as well as individuals challenging wellness as discriminatory."
Irina Raicu, director of the Internet Ethics Program at the Markkula Center for Applied Ethics at Santa Clara University, said concerns about the use of wearables in company wellness programs are understandable.
"Even if wellness programs are voluntary, if a high enough percentage of workers opt-in, then the ones who don't are marked, in a way," Raicu said. "It's a valid concern, and we should avoid thinking about the rosy P.R. scenarios associated with using a device like a new Fitbit.
"For some people, a free Fitbit would encourage them to get fit," Raicu said. "Yes, some people think new technology is interesting, but there's even a backlash now. Tech people love these new devices and assume everybody does, but there are some people who try them and stop later. They say things like, 'I just rode my bike and I don't know how far I rode and how many calories I burned, but it really was fun.' "
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