Can wearable fitness device data be used to defend employment litigation?

By Kristen Cifolelli, courtesy of SBAM Approved Partner ASE

The use of fitness trackers has dramatically increased over the last several years and recent studies have shown that approximately one in five U.S. consumers own a wearable device.  Many employers actively support the use of fitness trackers such as Fitbits in their workplace wellness programs.  The goal is to encourage employees to have healthier lifestyles in order to reduce the organization’s healthcare costs.  Almost half of all workplace wellness programs, according to one estimate, use fitness trackers, and in many cases they are actually supplied by the employer.

Fitness trackers record a wealth of information, from daily activity levels such as steps taken, distance traveled, calories burned as well as sleep time and sleep quality.   This information can be shared by companies to their health insurance carriers in order to lower health insurance premiums.  But could information gathered by fitness trackers be used by employers to help defend employment related litigation?

Currently there are two, non-employment related cases that involved the use of fitness trackers in litigation.  The first involved a fitness trainer in Calgary, Canada in 2014.  The plaintiff had been involved in a car accident.  She wore a wearable fitness tracker over a designated period of time following the accident.  This data was used to show that she had a lower physical activity level as a result of her injuries following her accident compared to others of her age in her profession.

The second case involved the Lancaster, Pennsylvania police.  A woman filed a report with the police alleging a man broke into her house while she was asleep.  According to the claim, the man pulled her out of bed and sexually assaulted her.  During the time the woman alleged she was sleeping, her wearable fitness tracker provided data that indicated she was awake and walking around.  Police were able to use this information as evidence to contradict her statement and support charges later brought against her for making a false report to the police.

When it comes to employment litigation, data from wearable devices can provide invaluable data and evidence to help dispute a claim that involves an individual’s personal health information.  Information such as sleep patterns, physical activity, and steps taken for example, can be used to help investigate whether the employee has a serious health condition under FMLA, is disabled under ADA or has a workplace injury that may qualify the individual for workers’ compensation.  Data such as heartrate can show whether it increased during the period of time the employee claimed an incident of harassment took place.   Activity such as loss of sleep or an ongoing elevated heart rate can be used to help prove or discount whether anxiety is present which can help defend the employer against emotional distress damages.

The main issue regarding these devices is the extent that this information may be obtained by employers. This information can be gathered from either the manufacturer or directly from the individual’s device. Certainly the information gathered by this technology is personal in nature, therefore it raises the question of whether there is a reasonable expectation of privacy and if the individual authorized the disclosure of the data that has been captured.  If the individual opted to keep their profile and data from their device publicly viewable, then employers can easily access this information.  If their profile is private formal discovery efforts will be required.

Interestingly enough, while it would appear the data gathered from a wearable device, such as heart rates, would be protected health information, the Health Insurance Portability and Accountability Act (HIPAA) covers only certain information maintained by certain medical entities and does not protect data stored on a wearable device.  Even if it was covered under HIPAA, the law does make exceptions to access protected health information as a result of certain legal requests.  Many manufacturers also have privacy policies that state that they will release data as a result of litigation.  Fitbit’s privacy policy states that data will be released when “reasonably necessary to comply with a law, regulation [or] valid legal process [.]”

Just as social media discovery is now being used to help employers in defending against litigation, discovery requests for wearable fitness devices may also be of value.  Employers should work with their employment law attorney to determine whether this information would be appropriate to help defend a claim, gather appropriate authorizations and disclosures, and use qualified experts to help provide analysis of the data.