May 15, 2018

 Outsmarting the smartwatch

How to keep your team working and your practice compliant in a changing world

Cropped image of a smiling young woman synchronizing her mobile phone with smart watch isolated over white backgroundComputers are everywhere: in our homes, in our offices, in our stores, in our pockets. Cell phones, laptops, and tablets dominate our day-to-day life. And with the use of the smartwatch on the rise, that small sliver of space which remains device-free is rapidly shrinking. The internet is never more than a tap, swipe, or flick away.

That easy and constant access and connectedness—whether you like it or not—is shared by the employees in your office. And if you haven’t considered how to address wearable devices in the workplace?

It’s high time that you did.

Use of smartwatches and other wearable devices while at work can be particularly irksome to managers. Attempting to restrict them brings up many of the same challenges seen with curtailing smartphone use: potential NLRA non-compliance, HIPAA violation risks, and even possibly losing helpful productivity or health features. Yet they’re even more visible and accessible at all times, so the potential for distraction is endless.

Let’s break down the problem and what you can do about it.

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Dealing with this issue is not straightforward

By definition, a smartwatch is a wearable computing device that’s designed to closely resemble a wristwatch—and with their Bluetooth capability, smartwatches even act as an extension of the user’s phone. Texting is available, as is the internet, email, voice recording, a camera, and many other apps. Between likely losses in productivity and increased risks of HIPAA violations, many employers would be happy to just ban all smartwatches from the workplace altogether.  

But you can’t.

Beyond infuriating your employees with a somewhat patronizing and invasive policy (“I’m not allowed to use my own personal property at work? Even as a tool for my job? That’s messed up!”), a ban on all smart devices may not be possible to legally enforce.

Don’t believe us? Just ask the National Labors Relations Board (NLRB), the federal agency that interprets and enforces the National Labor Relations Act. The NLRB routinely challenges and strikes down policies that are over-broad or that attempt to overregulate employee communications, especially while on paid breaks or during non-production time.

Why? By banning or limiting employee communications too broadly, the NLRB could claim that you are attempting to limit or “chill” your employees’ ability to talk about or attempt to improve their working conditions, which are protected rights. This makes smartphone, smartwatch, and other policies that restrict employees’ use of technology at work big targets for NLRB enforcers or plaintiff’s attorneys looking for violations they can use to win a case against you.

“But what if,” you say, “my employees aren’t talking about working conditions? What if they’re sending gossipy text messages and figuring out where to eat out this weekend?”

That’s the likelihood at many practices, but you’ll still need a smart device policy that won’t land you in legal trouble later.

Then there’s the hippo in the room

You also need to consider HIPAA compliance when creating a smart device policy. With all these tools at your employees’ fingertips to record, store, and transmit data, and with a whole range of potential security weaknesses that could affect different apps and devices, it’s your job to make sure no protected health information (PHI) is compromised.

Think back to those handy cameras on smartwatches. Without limiting employees’ rights to communicate about working conditions or to report OSHA issues—yes, this protection applies to photography and video—how can you ensure that no protected health information is compromised?

This can best be achieved through comprehensive policies, and by ensuring that your employees have a thorough understanding of what would count as a HIPPA violation. (Time for some refresher training?) Among many other provisions, this means employees cannot photograph or post any patient details on social media without formal patient authorization, nor can they discuss PHI with anyone who doesn’t have a need to know. Both your HIPAA compliance policy and your cell phone/smart device policy need to be clear, robust, and enforceable, so you can take immediate action if rules are broken.

Snapping a picture of tools not being sanitized properly to share with a supervisor? Acceptable and legal. Sending a snapchat of a patient’s file with a funny last name? Not so much.

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Some might argue that smartwatches don’t hinder, but help

You’ve probably realized that the issue of smartphones in the workplace isn’t black-and-white, and here’s another complication: Some of your employees might argue that smart devices actually help them to perform necessary work-related duties. This is becoming more common as smart devices become integrated into our lives and practices.

Aside from the basic timekeeping function, which can be used for everything from measuring pulse and respiratory rates to knowing when it’s time to come back from break, there are many mobile apps specifically designed to help healthcare professionals with day-to-day tasks. Some employers feel it’s useful for employees to use these features, or to be able to subtly check work-related texts, emails, or patient details. Yet all of this makes HIPAA compliance and foreseeing and preventing potential breaches more complex.

Patients aside, still other employees might be using smartwatches or other wearable tech to monitor their own health issues—which they may or may not wish to describe to you.

So what should you do?

To limit distractions without curtailing rights, there is no set answer that will work for every practice. But there are general guidelines that will help ensure that your policies are legal and limit your risks. An effective smart device policy needs to address acceptable and non-acceptable usage, and might include ideas such as:

  • Smart devices should not be used in front of patients;
  • Smart devices should not be used when you are expected to be working;
  • Smart devices should not be used in (active) clinical areas or at the front desk;
  • Smart devices should only be used in the break room / outside the practice / etc.;

Or, if your practice uses smart devices in an official capacity,

  • Only approved devices and applications may be used while treating patients.

And, one last piece of advice:

Don’t adopt a generic policy—it needs to fit your practice

Each office is unique, and your policies should reflect that. Yet you also need to remain compliant with federal, state, and local laws as they are updated and changed. We strongly recommend hiring HR professionals you trust or an attorney who specializes in employment law to help create your smartwatch/smart device policy. You’ll also want to make sure you have continued support available as you implement and enforce your policy. (At CEDR, these services are included with membership.)

Somewhere between Fitbits, Samsung devices, and Apple watches is a policy and a set of HR practices that can keep your office and employees legal and compliant.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace counsel about a specific issue with an attorney or HR expert. This material is meant to provide information that is believed to be current as of the date of this post.

 

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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Please note: CEDR Solutions specializes in providing expert HR support to owners and operators of independently owned medical and dental practices.