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get to work.
and collection of electronically stored
information (ESI) if a regulatory
request is issued.
“The only way to prevent
liability is to completely disallow
wearables,” she said. “But we know
that’s an imperfect solution. It’s
better to manage their responsible
use, considering the influx of the
technology will be difficult to curtail.”
Lange noted that part of the
allure of wearables is the promise
of efficiency and convenience, and
nowhere are these values more
embraced than in the workplace.
Thirty years ago, computers were
not on every desk, but today it’s
impossible to imagine the workplace
“Whenever technology can offer
a business a more efficient employee
base and cost-savings due to increased
productivity, it will catch on. It’ll be
no different for wearables,” she said.
“As these devices evolve into
stand-alone technologies, we can
assume more issues will arise because
they’ll begin to store their own
data,” she said. “The tricky part for
businesses and courts is knowing
where to draw the line between
personal and private data, and that
which is relevant to litigation.”
Recovering data from a fitness
tracking wearable, for example, could
be a great tool to fight a workers’
comp claim. But it’s also a privacy law
minefield touching everything from
the Privacy Act of 1974 to potentially
even HIPAA, she said.
Wearables are going to be a
headache for employers, she said,
calling the emerging technology a
“high-risk, high-reward innovation.”
But what happens if the wearable
produces adverse health effects? Or
if an employee who is driving to work
and using work-issued Google Glass
gets in a car accident?
Also, how can you protect trade
secrets and intellectual property
when an employee can record
everything they look at through their
glasses — with the employer being
none the wiser?
“These are the questions lawyers
will be asking in the coming years as
even bigger tech players like Apple
join the wearables industry,” she said.
Speaking of Google Glass as a
potential headache-causing wearable,
Ram said that product recall is
another outcome that may dampen
the hype around wearables. Risks
arise as wearables become more
invasive and closer to the skin.
In fact, in March 2014, the U.S.
Consumer Product Safety Commission
issued a total recall of the Fitbit
Force, one of the most popular fitness
tracking wristbands on the market.
Fitbit Inc. had sold more than one
million Fitbit Forces, but some users
developed allergic contact dermatitis
to “the stainless steel casing, materials
used in the strap, or adhesives used
to assemble the product, resulting in
redness, rashes or blistering where
the skin has been in contact with the
tracker,” according to the official
CPSC recall notice.
“When you use a cell phone,
you can put it down,” Ram said.
“Wearables are always on you,
other than when charging. Recall
for wearables is something not
being adequately addressed by the
insurance marketplace right now.
“For insurance carriers, risk
managers and employers, the world
of wearable devices will evolve very
quickly, making it a challenge to keep
up from a risk transfer perspective,”
TOM STARNER is a freelance business
writer and editor. He can be reached at
“This is fertile new territory because so
much is unknown right now.”
— CHRISTINE LYON, PARTNER,