Indiana is the latest state to prohibit employers from requiring job seekers or employees to have devices such as microchips or radio frequency identification device (RFID) tags implanted into their bodies as a condition of employment.
The new law banning mandated implantable technology is set to take effect July 1.
No Indiana employers or workplaces in any other state require such devices to be implanted, but lawmakers in 11 states now have made their position known in advance of any interest in implantable technology.
"It's a pre-emptive strike," said Susan Kline, a partner at law firm Faegre Drinker in Indianapolis. "It sends a signal of 'don't even think about it.' Why? First, because it's invasive. Then there are the ramifications in terms of lack of control over what data is collected, and how it is used, and how device mandates put employees in the position of feeling pressured or at risk of retaliation. The Indiana law contains a prohibition against retaliation for refusing to voluntarily receive a device implant."
Craig Wiley, an attorney in the Indianapolis office of Jackson Lewis, said that employers interested in using implanted devices or other technology to collect employee information must remain vigilant, monitoring an ever-changing landscape of state laws and regulations.
Employers are banned from requiring device implants in Arkansas, California, Missouri, Montana, Nevada, New Hampshire, North Dakota, Oklahoma, Utah and Wisconsin.
Similar proposals have been pending in the state legislatures of Iowa, Rhode Island and Tennessee.
"The COVID-19 pandemic caused many companies to instruct employees to work from home for the foreseeable future, which resulted in a spike in the use of employee-monitoring technologies in the workplace," Wiley said. "Frequently, the aim is to track an employee's physical location, to measure productivity or, most recently, to track close contacts for COVID-19-related contact-tracing purposes. These measures bring up questions about proper protection for employee privacy rights."
Kline said privacy concerns include questions like "Can it track your location? Can it track what kind of motion you make to monitor productivity? What about collecting medical information in violation of the ADA [Americans with Disabilities Act]? What about when someone leaves? Who does the device belong to? How would an extraction procedure be enforced?"
Backers of the technology say there are benefits for employees in terms of convenience. The implants are small, passive tags that allow a person to wave their hand over a scanner to open a door, log in to a computer or pay for lunch in the company cafeteria. Device makers say the implants are not equipped for the round-the-clock monitoring some people might fear. At least not yet.
"This could certainly be a vexing issue for the future," Kline said. "The Indiana law states that you can't mandate an implant, but people can volunteer for it. It can be sold to employees as a perk of the job."
The movement to inhibit a technology that isn't in use has some saying lawmakers may be stunting the growth of a technology that could have some benefits.
"The one person who voted against the Indiana law said that it's not only a solution in search of a problem, since we aren't hearing this is something employers are doing, but also said that this technology may develop into something positive in the future, so why prohibit what does not yet exist?" Kline explained.
"As states go into this, it is important that laws be carefully crafted, because provisions could have unintended consequences for the future," she said.
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