Technology is constantly providing new ways to help both employers and employees in New Jersey. Unfortunately, sometimes a technology that helps employers does so at employees’ expense. Our legal system can be slow to catch up with new innovations. Fitness trackers, which are devices individuals can wear to track movement and other vital statistics, are becoming more and more common. Many employers have taken notice of this. A recent Washington Post article describes fitness trackers as “an increasingly valuable source of workforce health intelligence for employers.” Employers’ access to, and use of, employees’ fitness tracker data raises concerns about privacy. In some cases, it could raise concerns about employment discrimination. Federal and New Jersey employment laws prohibit discrimination on a wide range of factors, and protect privacy in certain areas. Opinions are mixed on the extent to which they cover fitness tracker data.
Arguably, employers use employee fitness tracker data to monitor performance. The devices record information about an employee’s movement, or lack thereof. This could be relevant to job performance, but it could also present problems. The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees and job applicants on the basis of disability. N.J. Rev. Stat. § 10:5-12(a). The statute defines this term very broadly, covering a wide range of physical and mental conditions that “prevent the normal exercise of any bodily or mental functions.” Id. at § 10:5-5(q). At the federal level, the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008, also prohibits employment discrimination. This statute’s definition of “disability” includes both actual and perceived disabilities. See 42 U.S.C. §§ 12102(1)(C), 12112.
State and federal antidiscrimination law also prohibit discrimination by employers based on genetic information. This could be an issue for employers using fitness tracker data in some situations. The NJLAD defines “genetic information” as “information about genes, gene products or inherited characteristics.” N.J. Rev. Stat. § 10:5-5(oo). The plain language of the statute suggests that the information does not have to come from a genetic test ordered by the employer. The federal Genetic Information Nondiscrimination Act (GINA) focuses more specifically on genetic testing. It defines “genetic information” as information derived from a person’s genetic test or that of a family member, or “the manifestation of a disease or disorder” in a member of that person’s family. 42 U.S.C. §§ 2000ff(4)(A), 2000ff-1(a).