As more employers incorporate wearable technology in the workplace, including those enhanced by artificial intelligence, the Equal Employment Opportunity Commission (EEOC)’s new fact sheet “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” offers important considerations for employers.  The EEOC explains how employers can navigate the complexities of using wearable technologies while ensuring compliance, primarily, with the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and to a lesser extent, Title VII and GINA.

What Are Wearable Technologies?

Wearable technologies, or “wearables,” are electronic devices that are designed to be worn on the body. These devices are often embedded with sensors that can track bodily movements, collect biometric information, monitor environmental conditions and/or track GPS location. Common examples of wearables include:

  • Smartwatches
  • Fitness Trackers
  • Wearable Cameras
  • Continuous Glucose Monitors
  • Smart Rings
  • Environmental or Proximity Sensors
  • GPS Devices
  • Other aids

Other examples of wearables that are beginning to be used in the workplace include smart glasses and smart helmets that can measure electrical activity of the brain referred to as electroencephalogram or “EEG” testing or detect emotions.  Exoskeletons are also being used to provide physical support and reduce fatigue.

Wearables in the workplace may implicate federal and state employment, data privacy, AI, and potentially other laws when employers require employees to wear them or if the information collected from the employee’s wearable is reported to the employer.

Key Considerations From the EEOC Guidance

The EEOC’s new guidance outlines several important considerations for employers using wearable technologies with employees:

  1. Medical Examinations and Disability-Related Inquiries: Employers using wearables to collect information about an employee’s physical or mental conditions, such as blood pressure monitors or eye trackers, may be conducting “medical examinations” under the ADA. Similarly, directing employees to provide health information in connection with using wearables may constitute disability-related inquiries. Under the ADA, medical examinations and disability-related inquiries are strictly limited to situations where they are job-related and consistent with business necessity such as in connection with a request for reasonable accommodation, in connection with a concern about whether an employee’s ability to perform essential job functions is impaired by a medical condition, or when there is a concern the employee may pose a direct threat of serious harm to their own or others’ health or safety due to a medical condition. In addition, medical examinations and inquiries are also permitted when required under a federal law or safety regulation (i.e. DOT or OSHA requirements), when conducted as part of a periodic examination of employees working in certain positions affecting public safety that are narrowly tailored to address specific job-related concerns (i.e. police officers, firefighters), or when made as part of voluntary wellness programs. A disability-related inquiry is a question(s) that is likely to elicit information about a disability. There are a variety of factors considered in determining whether a test or procedure is a medical examination, but generally speaking, a medical exam is defined by the EEOC as a procedure or test that seeks information about an individual’s physical or mental impairments or health.
  2. Confidentiality: Any medical or disability-related data collected from wearable devices must be kept confidential and stored separately from the employee’s personnel file. This information should only be shared with individuals who need to know it for legitimate business reasons consistent with the requirements of the ADA and PWFA.
  3. Non-Discrimination: Employers must ensure that the use of wearable-generated information does not lead to discrimination based on a protected characteristic such as race, color, religion, sex, national origin, age, disability, or genetic information. For example, the EEOC explains that using heart rate data to infer pregnancy and then making adverse employment decisions based on that information could violate EEO laws.
  4. Reasonable Accommodation: Employers may need to make exceptions to a wearables policy as a reasonable accommodation under Title VII (religious belief, practice, or observance), the ADA (disability), or the PWFA (pregnancy, childbirth, or related medical conditions). For example, this could include providing an alternative for employees needing accommodation due to pregnancy, disability or a conflicting religious belief.
  5. Accuracy and Validity of Data: Employers should consider the accuracy and validity of the data collected by wearables, especially across different protected bases. Inaccurate data that disproportionately affects certain groups could lead to discriminatory practices. For example, the EEOC explains that relying on wearable technology that produces less accurate results for individuals with dark skin could lead to adverse employment decisions against those workers.

This overview highlights the key points from the EEOC’s new guidance. Employers should review the full guidance to ensure compliance and consult with legal counsel if they have specific questions or concerns. In addition to compliance with discrimination laws, the adoption of wearables and other emerging technologies in the workplace to manage human capital raises a number of additional legal compliance challenges including privacy, occupational safety and health, labor, benefits and wage-hour compliance to name a few. Jackson Lewis’ multi-disciplinary team of lawyers is prepared to assist.   

Compliance with California’s paid sick leave law grew increasingly complex this year with new legislative developments. The Labor Commission updated its Frequently Asked Questions Page for California Paid Sick Leave to address these changes. Our article, New FAQs on California Paid Sick Leave Unveiled | California Workplace Law Blog, identifies highlights from the FAQs that employers should be aware of as they enter the new year.

Cook County employers aren’t wrong if they’re feeling its “déjà vu all over again” when it comes to needing to review their paid leave policies. Recently approved amendments to the Final Interpretive and Procedural Rules governing the Cook County Paid Leave Ordinance add new requirements to most employers with employees working in Cook County (outside of Chicago) and are effective immediately. Notable changes to the rules include:

  1. Paid leave accrues during paid leave
  2. Employers must maintain and distribute a written paid leave policy
  3. Remote workers must receive notice of rights
  4. Paid leave calculations are clarified for employees with work for various rates
  5. FMLA regulations supersede ordinance rules

Our article, Illinois’ Cook County Amends Paid Leave Rules: It’s Time for Employer Policy Review, provides more detail to help employers comply with the amended rules.

Minnesota’s Paid Leave Division recently published final proposed rules (“Proposed Rules”) that, if adopted, will regulate the state’s Paid Leave Law. The Paid Leave Law establishes a benefit insurance program for paid family and medical leave for covered Minnesota employees and takes effect on January 1, 2026. The Proposed Rules reflect input from businesses, healthcare providers, and Minnesota workers. The public can submit comments on the final proposed rules until January 3, 2025. In tandem with the publication of the Proposed Rules the Paid Leave Division updated its website with important next steps for employers to follow, along with answers to the most frequent questions asked regarding Paid Leave.

Final Proposed Rules Fill Gaps in Minnesota’s Paid Leave Statute

Insight on interpretation. The Proposed Rules provide critical guidance on how the Paid Leave Division—the agency authorized to administer the Paid Leave Law—will interpret the statute. For example, the Proposed Rules explain how the Paid Leave Division will determine whether an employee is considered a “seasonal employee” and therefore not covered by the Paid Leave program. (Rule 3317.3000). The Proposed Rules emphasize that self-employed individuals and independent contractors must establish an online account through the Paid Leave Division (Rule 3317.4000, subpart 1). The Proposed Rules also outline how to calculate benefits for a covered individual taking intermittent leave (3317.4700).

Additional requirements. The Proposed Rules impose additional requirements on individuals and key stakeholders to receive benefits. For example, a covered individual must report to the commissioner any additional income received during leave covered by the Paid Leave Law (Rule 3317.4600, subpart 2). The Proposed Rules also create a roadmap for how a covered individual must (1) request an extension of their covered leave; (2) request a change to their intermittent leave schedule; (3) request to switch from intermittent to continuous leave; and (4) request to switch from continuous to intermittent leave (3317.4600, subpart 4-7).

The Proposed Rules impose certain qualifications that a professional must meet in order to certify an employee’s need for leave under the Paid Leave Law for safety reasons (“Safety Leave”). (3317.8000). The Proposed Rules require the professional who certified an applicant’s need for Safety Leave to maintain documentation verifying their credentials for certification and must be able to provide such documentation to the commissioner upon request. 

If an employee requests covered leave under the Paid Leave Law to care for a family member with a serious health condition, the Proposed Rules specify the information that employees must provide. (Rule 3317.6000) Notably, the Proposed Rules provide that when more than one applicant seeks leave to provide care for the same family member with a serious health condition, all applicants’ certifications must be completed by the same health care provider.

Private plans. With respect to employers opting to use a private plan administrator, the Paid Leave Division has not issued guidance on how it will process applications for private plans and has stated it is working with the Minnesota Department of Commerce to determine an approval process. The Proposed Rules explain that beginning in 2027, self-insured employers and private plan insurers must submit annual reports to the commissioner containing specific information outlined in the Rules, including total eligible claims, the percentage of and reasons for claims denied in the fiscal year, processing times for initial claims processing and final decisions, and the average weekly benefit amount paid for all claims by benefit category. (Rule 3317.5000). Employers will remain liable for premiums until a self-insured or private plan is approved and effective. (Rule 3317.5000, subpart 5). The Proposed Rules require employers opting for private plans to give employees notice of coverage under the private plan that meets requirements set out in the Rules. (Rule 3317.5100).

The Paid Leave Division Updates Frequently Asked Questions Guide to Complying with the Law

The Paid Leave Division updated its FAQ Guide for employers. The updated FAQ Guide explains that covered employers must report all wages paid to employees through online wage detail reports due to Minnesota’s Unemployment Insurance (“UI”) or Paid Leave Division each quarter. Because the Paid Leave Division will use the existing UI system to collect the quarterly wage detail reports, employers whose employees are covered by UI will not need to take any new action. Employers with employees who are not covered by the UI program will need to set up a Paid Leave Only account.  The FAQ Guide explains that the Paid Leave law is distinct from the UI program, and some employers who are not required to participate in the UI program, like religious organizations, non-profits, and agricultural employers, are likely required to participate in the Paid Leave program.

The updated FAQ Guide specifies that wages include all compensation including commissions, bonuses, benefits payments, tips and gratuities, and goods and services. If a corporation is an S corporation for tax purposes, then the corporate’s “wage-taking shareholders are considered employees” so the shareholders’ wages must be reported on the wage detail reports. The updated FAQ Guide states that the first premium payments will be due to the State of Minnesota’s Department of Employment and Economic Development by April 30, 2026. The premium rate will be set on an annual basis and will not change based on the level of employees’ utilization of the program. Premiums will be capped at the Old-Age, Survivors, and Disability Insurance (OASDI) limit, which reflects the wage base used by Social Security.

If you have questions about Minnesota’s statewide mandatory leave laws, local leave laws, or mandatory employee leave laws throughout the country, please reach out to a Jackson Lewis attorney.

On December 4, 2024, the Maine Department of Labor (DOL) adopted finalized rules for the Maine Paid Family and Medical Leave Program (PFML). This rulemaking follows the Maine Legislature’s passage of the new law in 2023. Employer contributions and employee pay deductions to fund these benefits begin on Jan. 1, 2025.  Employees can begin receiving paid leave benefits effective May 1, 2026.

The finalized rules offer comprehensive details on the implementation and enforcement of Maine’s PFML program by the Department of Labor. While these rules carry few surprises and are largely consistent with the revised proposed rules discussed in previous blogs, there are several key differences highlighted below that employers should note:

Good Cause Definition: A “good cause” standard is now included within the definitions section of the rule. This will clarify circumstances which allow employees with “good cause” additional time to apply for benefits or request an appeal of a determination. The finalized rules define “good cause” as any serious health condition or any physical, intellectual, or linguistic limitation that prevents filing.

Waiting Period Adjustment: The final rules added a seven-day waiting period. Employees will receive benefits following the first seven calendar days of leave.

Notice and Undue Hardship: Employers can still determine undue hardship even if an employee provides reasonable notice of 30 days. An employer’s determination of undue hardship will not be considered reasonable unless the following are established: (1) the employer provided a written explanation of the undue hardship to the employee; (2) the employee retains the ability to take leave within a reasonable time frame relative to the proposed schedule; and (3) the employer has made a good faith attempt to work out a schedule for such leave that meets the employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the employee’s health care provider.

Benefit Calculation Update: The calculation of the average weekly wage is now determined by dividing the applicant’s reported wages in their base period by fifty-two.

Private Plan Substitution: Employers can substitute a similar private plan for the state plan starting April 1, 2025.

With payroll contributions beginning on January 1, 2025, it is crucial for employers to fully understand their new responsibilities under the law. These final regulations represent a significant step in providing employers clarity as to their compliance obligations. Please contact a Jackson Lewis attorney with any questions.

Maine’s PFML program and other state and local leave laws are included in our leave law map database that provides subscribers with a detailed explanation of state and local leave laws around the country. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys. Register here if you would like to learn about our Leave & Accommodation Suite.

Beginning Jan. 1, 2025, all private-sector employers in New York must provide eligible employees 20 hours of paid prenatal leave. The New York State Department of Labor released FAQs providing employers with guidance on the new law. According to the FAQs, paid prenatal leave is a separate entitlement from any other leave policies. As you prepare your policies in advance of the Jan. 1 effective date, you can read more about the important considerations included in the FAQs here: NYS Paid Prenatal Leave: Employers Must Manage a New Entitlement in the New Year – Jackson Lewis.

The Washington Employment Security Department has announced the Paid Family and Medical Leave 2025 premium rates and weekly benefit maximums.

Beginning on January 1, 2025, the Washington Paid Family and Medical Leave Program’s total premium rate will increase to 0.92% from 0.74%. This rate is recalculated annually in October, based on contributions from premiums and benefits paid during the previous year.

Employers must report each Washington employee’s total gross wages, not including tips. Premiums must be collected up to the Social Security cap, which will increase to $176,100 in 2025, to the Washington Employment Security Department. Once an employee meets the Social Security cap, employers must stop collecting premiums, but they must continue to report employee wages.

Employers with 50 or more employees will pay at least 28.48% of the total premium, which will require employees to pay 71.52% of the premium. Employers with fewer than 50 employees are not required to pay the employer portion of the total premium but must collect the employee portion of the premium or pay it on their behalf. Employers with approved voluntary plans under this law should consult with employment counsel about possible modifications to the voluntary plans.

Additionally, the maximum weekly benefit will be capped at $1,542.00 per week in 2025.

Employers should notify employees that they will begin collecting the new rate on January 1, 2025. An updated employer toolkit, mandatory poster and paycheck insert are available in the Washington Employment Security Department’s Paid Leave Help Center.

For more information about Washington’s Paid Family and Medical Leave program, or other paid leave laws and programs that may affect your organization, please contact a Jackson Lewis attorney.

The Maryland Department of Labor recently published proposed regulations to implement the state’s paid family and medical leave insurance program. Although they are not final yet, the proposed regulations provide important information for employers as they prepare for the new mandatory program. Payroll deductions will start July 1, 2025, and benefits will be available beginning July 1, 2026. We offer an in-depth look at the proposed regulations in our article, Maryland’s Impending FAMLI Program: What Employers Need to Know Now.

Alaska voters approved Ballot Measure 1 (according to unofficial election results) which provides for paid sick leave for all employees in Alaska. (The measure also raises the minimum wage over the next several years and imposes restrictions on employer-sponsored meetings about religious or political matters.) This new paid sick leave requirement becomes effective July 1, 2025.

Who is Eligible for Paid Sick Leave?

The new law applies to all employers and employees in Alaska. There are limited exceptions for apprentices, employees in work therapy programs, prison inmates, employees subject to the federal Railroad Unemployment Insurance Act, and other narrow exceptions.

Accrual and Carryover

All employees are entitled to accrue a minimum of one hour of paid sick leave for every 30 hours worked up to a cap. Employers with 15 or more employees may cap accrual and usage at 56 hours of paid sick leave per year. Employers with fewer than 15 employees may cap accrual and usage at 40 hours of paid sick leave per year. Employers may set higher accrual rates, accrual limits, and use limits. Exempt employees are assumed to work 40 hours per workweek for accrual purposes unless their normal work week is fewer than 40 hours.

Employees begin to accrue paid sick leave on July 1, 2025 or at the commencement of employment, whichever is later.

Paid sick leave carries over to the following year, but does not affect the amount of leave an employee may use in any given year.

Use of Paid Sick Leave

Employees may use paid sick leave as it is accrued. It may be used for the following:

  • An employee’s mental or physical illness, including diagnosis, care, treatment, and preventative medical care;
  • Care or assistance to an employee’s family member for the same reasons (“family member” means an immediate family member under AS 39.42.960(11), domestic partner, foster child, legal ward, person to whom an employee stands in loco parentis, foster parent, adoptive parent, legal guardian, person who stood in loco parentis when the employee was a minor child, or any other individual related by blood or whose close association is the equivalent of a family relationship); or
  • Absences due to domestic violence, sexual assault, or stalking to allow the employee or a family member to obtain medical or psychological attention, services from a victim’s aid organization, relocation or steps to secure an existing home, legal services, or participation in any investigation or civil or criminal proceeding.

Employees are required to give employers notice if the need for paid sick leave is foreseeable and must schedule foreseeable leave in a manner that does not unduly disrupt the employer’s operations.

For paid sick leave use of more than three consecutive workdays, an employer may require reasonable documentation that the paid sick leave was used for a covered reason.

Paid sick leave may be used in the smaller of hourly increments or the smallest increment the employer’s payroll system uses to account for other absences or use of other time.

Employers are not required to pay employees on termination for accrued, unused paid sick leave.

Employers may not retaliate against employees for using paid sick leave, interfere with employees’ use of paid sick leave, require employees to find replacement workers to cover the time the employee uses paid sick leave, or use an absence-control policy that counts paid sick leave in a way that can lead to any adverse action.

Employer Posting Requirements and Policies

Employers are required to give employees written notice of their entitlement to paid sick leave, the amount of paid sick leave they accrue, and the prohibition against retaliation. This notice must be given at the commencement of employment or within 30 days of the new law’s effective date of July 1, 2025.

Employers may adopt policies that provide more generous accrual rates, accrual caps, use caps, and other terms, provided those policies comply with the statute.

As we have seen in other states with similar requirements, some Alaska employers may consider implementing separate paid sick leave and vacation policies and carefully evaluate existing PTO (Paid Time Off) policies. Employers should consult with counsel to ensure they understand the new law’s requirements and are prepared to comply by next summer.

Alaska’s new paid sick leave law and paid sick leave ballot measures voters approved in Nebraska and Missouri are included in our leave law map database that provides subscribers with a detailed explanation of state and local leave laws around the country. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys. Register here if you would like to learn about our Leave & Accommodation Suite.

The DOL Wage and Hour Division’s recently issued opinion letter clarifies the scope of permitted uses of Family Medical Leave Act leave. Specifically, it affirms that eligible employees may use FMLA leave for medical interventions provided as part of clinical trials, regardless of whether the treatment is experimental or involves placebos. Highlights from the DOL’s opinion letter address the following areas: FMLA requirements employees must meet; caring for a family member participating in a clinical trial; a broad definition of “treatment”; optional, voluntary or elective treatments; and limitations around employer inquiries and certification. We offer more details in our expanded piece, Granting FMLA Leave for Clinical Trials: Five Key Points from the DOL’s New Guidance for Employers.