By Brent I. Clark, Erin Dougherty Foley, and Craig B. Simonsen

Seyfarth Synopsis: DOT has withdrawn its rulemaking on safety sensitive positions in highway and rail transportation.

This week the U.S. Department of Transportation has withdrawn its March 10, 2016 Advance Notice of Proposed Rulemaking (ANPR) on the Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea (OSA). 82 Fed. Reg. 37038 (Aug. 8, 2017).

The News Release indicates that “the Agencies have determined not to issue a notice of proposed rulemaking at this time and believe that current safety programs and Federal Railroad Administration’s (FRA) rulemaking addressing fatigue risk management are the appropriate avenues to address OSA.”  Emphasis added.

The ANPR had been directed at individuals occupying “safety sensitive positions” in highway and rail transportation, and on its potential consequences for the safety of rail and highway transportation. The DOT’s Agencies, the Federal Motor Carrier Safety Administration (FMCSA) and the FRA, through the rulemaking, were requesting data and information from employers and the public concerning the prevalence of moderate-to-severe obstructive sleep apnea among those employees in those positions.

The DOT had defined obstructive sleep apnea as a “respiratory disorder characterized by a reduction or cessation of breathing during sleep. OSA is characterized by repeated episodes of upper airway collapse in the region of the upper throat (pharynx) that results in intermittent periods of partial airflow obstruction (hypopneas), complete airflow obstruction (apneas), and respiratory effort-related arousals from sleep (RERAs) in which affected individuals awaken partially and may experience gasping and choking as they struggle to breathe.”

The ANPR stated that risk factors for developing OSA included: obesity, male gender, advancing age, family history of OSA, large neck size, and an anatomically small oropharynx (throat). Additionally, OSA was associated with increased risk for other adverse health conditions such as: “hypertension (high blood pressure), diabetes, obesity, cardiac dysrhythmias (irregular heartbeat), myocardial infarction (heart attack), stroke, and sudden cardiac death.

The withdrawal of this rulemaking may save employers in these industries perhaps considerable efforts and costs, although familiarity with the ANPR and comments received on the rulemaking may be worthwhile.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Labor & Employment Teams.

 

By Karla Grossenbacher and Selyn Hong

Synopsis: Wearable device data may be the next big thing in the world of evidence for employment cases. Given the nature of the information captured, it is easy to see how this type of data may be relevant to claims of disability discrimination, workers’ compensation and even harassment

Wearable device data may be the next big thing in the world of evidence for employment cases since social media. Given that it has already been used in personal injury and criminal cases, it is only a matter of time before wearable device data is proffered as evidence in an employment case.

From Fitbit to the Nike FuelBand to a slew of others, the worldwide wearable market has exploded in recent years. In a world increasingly obsessed with health and fitness, wearable devices offer instantaneous and up-to-the-minute data on a number of metrics that allow the user to assess his or her own health and fitness.  Wearable devices can track information like heart rate, calories, general level of physical activity, steps taken, diet, blood glucose levels and even sleep patterns.  Given the nature of the information captured, it is easy to see how wearable device data may be relevant to claims of disability discrimination, workers’ compensation and even harassment.

Evidence of What?

Wearable device data has been used in at least two nonemployment cases to date. In 2014, a personal trainer in Calgary, Canada, used wearable device data in her personal injury case to demonstrate the extent of her injuries.  She wore a Fitbit during an “assessment period” to show that, as a result of her injuries, she maintained activity levels under a baseline for someone of her age and profession.

And in 2015, police in Lancaster, Pennsylvania used Fitbit data to support criminal charges against a woman who they asserted had made a false report to law enforcement that resulted in a manhunt for her alleged assailant. The woman had claimed that a man had broken into the house in which she was staying while she was asleep, pulled her out of bed and sexually assaulted her.  But her Fitbit told a different story.  It revealed that she had been awake and walking around at the time she claimed to have been attacked while sleeping.  The Fitbit data, along with other evidence, led investigators to conclude that the woman was lying and charges were brought against her.

You Are What You Wear

In the employment litigation context, wearable device data could help a factfinder determine whether a plaintiff is “disabled,” has a “serious medical condition” or suffered a workplace injury. Data such as heart rate, physical activity level, number of steps taken, and sleep patterns could all be probative of an individual’s physical and mental state.  Employers facing disability discrimination claims could use wearable device data much like they would use medical records and social media postings — to investigate and, if appropriate, discount a plaintiff’s claim that his or her “major life activities” like walking or sleeping have been substantially limited.

In harassment cases, wearable device data could show whether a plaintiff’s heart rate went up when the claimed harassment occurred. It could also provide probative evidence of whether harassment was severe and pervasive during the relevant time period.  Wearable device data could also help prove or disprove any claimed emotional distress damages.  For example, wearable device data could help demonstrate sleep loss or even an increased heart rate as probative evidence of anxiety.

To Admit or Not to Admit

Despite its obvious probative value, the admissibility of wearable device data as evidence in employment litigation is not a foregone conclusion. Wearable devices come with inherent reliability issues.  For instance, devices that count steps based solely on arm movements may erroneously count fidgeting while lying in bed as steps taken.  In 2015, a California man filed a class action suit against Fitbit, alleging that the company’s sleep tracking is inaccurate and constitutes false advertising.  Additionally, a user may forget to wear the device or neglect to change the battery.  And there is always the possibility of data manipulation whether by jostling to create false readings or having someone else wear the device.

But that is not to say that wearable device data should not be admissible. Courts and legal practitioners alike regularly work with flawed forms of evidence.  They know all too well that eye witnesses have faulty memories, that experts in the same field may reach vastly different conclusions based on identical data, and that witnesses may possess their own innate biases that color their testimony.  Yet, this does not stop such evidence from being admissible.

Similarly, the aforementioned reliability issues will not stop wearable device data from making its way into courtrooms across the Unites States. Theoretically, permitting such information may even remove potential biases from the human lens and offer some objectivity.  In addition, a court could find wearable device data admissible and then determine what weight to give it based on the quality of the data provided.

Objection! Privacy … Right?

The information gathered by an individual’s wearable devices is inherently personal. Wearable device data can be obtained from either the wearable device manufacturer or directly from the individual’s device.  From a privacy perspective, the threshold issues are whether or not the user has a reasonable expectation of privacy in the wearable device data, and if so, whether or not the user has consented to or authorized the disclosure of the data.

In terms of statutory protections, at first blush, heart rates and glucose levels seem like information that would be considered “protected health information” in the normal sense of the term. However, the Health Insurance Portability and Accountability Act covers only certain information maintained by certain medical entities, and it does not protect data stored on an individual’s wearable device.

Even if medical privacy laws did cover wearable device data, it would likely fall under an exception to HIPAA for certain legal requests. A number of wearable device companies have privacy policies that explicitly state that data may be released in the event of litigation.  For example, Fitbit’s privacy policy states that it will release data “reasonably necessary to comply with a law, regulation [or] valid legal process[.]” And Jawbone’s policy similarly states that it “may disclose your personal information to …  comply with relevant laws, regulatory requirements and to respond to lawful requests, court orders and legal process[.]”

Under common law, given the personal nature of the information on a wearable device, an individual could interpose an objection based on invasion of privacy to the disclosure of data from his or her wearable device. The best way to avoid such a claim is to obtain the individual’s consent or assert that there is no expectation of privacy with respect to the data on the device.  In the Lancaster, Pennsylvania criminal case, the police claimed that the alleged victim of the sexual assault had consented to their review of the data from her Fitbit.  In the Calgary case involving the personal trainer, she put the information on the device at issue herself and offered it into evidence to support her case.  In an employment case, defense counsel could argue that, by bringing the claim regarding a workplace injury or a disability or requesting emotional distress damages, the plaintiff is putting the information on the wearable device at issue.

Strategies for Use of Wearable Device Data In Employment Cases

  • Take the time to learn about the various types of wearable devices and how they work. Some may count moving your arms around as walking (which is a great morale booster, at best).  Others will not register cycling as activity.  Know what you are working with so you can determine whether the information is relevant and helpful to your case.
  • Just as you would include requests for social media information in your discovery requests, include requests for wearable device data.
  • Be prepared to address objections based on privacy interests and determine how you will show consent or authorization for the disclosure.
  • Consider engaging a qualified expert who can reliably explain and interpret the wearable device data.
  • Get to know your local analytics companies now; you are bound to need one in an employment case coming near you soon.

Karla Grossenbacher is a partner in Seyfarth’s Washington, D.C., office and Selyn Hong is an associate in Seyfarth’s San Francisco office.

By Erin Dougherty Foley, Brent I. Clark, Ilana R. Morady and Craig B. Simonsen

The U.S. Department of Transportation has published an Advance Notice of Proposed Rulemaking (ANPR) on the Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea, 47 Fed. Reg. 12642 (March 10, 2016).

The ANPR is directed at individuals occupying “safety sensitive positions” in highway and rail transportation, and on its potential consequences for the safety of rail and highway transportation. The DOT’s agencies, the Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA), through this rulemaking, are requesting data and information from employers and the public concerning the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among those employees in those positions.

The DOT is defining obstructive sleep apnea as a “respiratory disorder characterized by a reduction or cessation of breathing during sleep. OSA is characterized by repeated episodes of upper airway collapse in the region of the upper throat (pharynx) that results in intermittent periods of partial airflow obstruction (hypopneas), complete airflow obstruction (apneas), and respiratory effort-related arousals from sleep (RERAs) in which affected individuals awaken partially and may experience gasping and choking as they struggle to breathe.”

The ANPR states that risk factors for developing OSA include: obesity, male gender, advancing age, family history of OSA, large neck size, and an anatomically small oropharynx (throat). Additionally, OSA is associated with increased risk for other adverse health conditions such as: “hypertension (high blood pressure), diabetes, obesity, cardiac dysrhythmias (irregular heartbeat), myocardial infarction (heart attack), stroke, and sudden cardiac death.”

Specifically, the agencies are requesting comment on the costs and benefits of requiring motor carrier and rail transportation workers in safety sensitive positions “who exhibit multiple risk factors for OSA to undergo evaluation and treatment by a healthcare professional with expertise in sleep disorders.” For instance, the DOT points out that the Federal Aviation Administration:

Has always considered OSA a disqualifying condition, but has used its special issuance process to certificate airman if the hazard of OSA was satisfactorily treated or mitigated. In November 2013, FAA proposed guidance that would have required pilots with a body mass index (BMI) of 40 or more to be evaluated for OSA.

As this rulemaking presents perhaps considerable efforts and costs on impacted employers, review and comments on the ANPR may be worthwhile. Comments on the ANPR, under Docket numbers FMCSA–2015–0419 and FRA–2015–0111, are due by June 8, 2016.

By Jonathan D. Karelitz and Craig B. Simonsen

The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, contains extensive rules designed to limit access by non-health plan entities to certain individually identifiable health information (collectively referred to as the “Privacy Rule”).

The Privacy Rule contains a number of exceptions for when protected health information (PHI) may be accessed. One such exception is when an individual seeks to access his or her own PHI.

Recently the U.S. Department of Health & Human Services (HHS) has issued a fact sheet in the form of a topical Frequently Asked Questions (FAQs) to further clarify individuals’ rights to access and obtain a copy of their PHI.

According to Jocelyn Samuels, Director, Office for Civil Rights (OCR), recent studies and HHS enforcement data have shown that “far too often individuals face obstacles to accessing their health information, even from entities required to comply with the Privacy Rule.” As an “important step” so that individuals may more readily take advantage of their HIPAA right of access, the HHS released this fact sheet.

The FAQs address the scope of information covered by HIPAA’s access right, the limited exceptions to this right, the form and format in which information should be provided to individuals, the requirement to provide access to individuals in a timely manner, and the intersection of HIPAA’s right of access with the requirements for patient access under the Health Information Technology for Economic and Clinical Health (HITECH) Act’s Electronic Health Record Incentive Program.

As noted above, under the Privacy Rule, HIPAA covered entities (health plans and most health care providers) are required to provide individuals, upon request, with access to the PHI about them in one or more “designated record sets” maintained by or for the covered entity.  Individuals have the right to inspect or obtain a copy, or both, of PHI, as well as to direct the covered entity to transmit a copy to a designated person or entity of the individual’s choice.

A covered entity may require individuals to request access in writing. Covered entities also may offer individuals the option of using electronic means to make requests for access. In addition, the Privacy Rule requires a covered entity to take “reasonable steps” to verify the identity of an individual making a request for access.

For employers that have health plan administration responsibilities, the take-away from this new fact sheet is clear: Be certain to have all of the appropriate policies and procedures in place to provide covered employees with access to their own PHI.