Top 3 Legal Concerns for Micro-Chipping Employees

By George Khoury, Esq. on July 25, 2017 | Last updated on March 21, 2019

You don't even need to spend a minute in virtual reality to know that the future is here. And with all the new technology, as always, there are new challenges.

RFID implants, while not so new anymore, have still not been utilized to their fullest potential, especially by employers in the U.S. However, one employer in Wisconsin is looking to change that by setting an example.

Three Square Media rolled out a program for employees to get implanted with an RFID device. The implant, which is about the size of a grain of rice, can serve as an ID badge, a key card, a way to bypass multi-step authentication on computers, or other devices, and can even be used for electronic payments like a smart phone.

While the program is voluntary, the company hopes their own example will allow its customers to see what's possible. Three Square Media sells technology for self-service style marketplaces and kiosks for private enterprises.

1. Statutory Compliance

While there may not be many statutes on the books about implanting employees with tech, requiring RFID implants is likely to run afoul of public policy. In states like California, there are somewhat hefty penalties for requiring, or even compelling/incentivizing, employees to get implanted.

2. Security

Because employee ID badges can often literally open the doors of a business, and sometimes even provide access to sensitive information, the advantage of an implantable chip is clear. The risk of loss and theft of badges is greatly reduced if the badge is under an employee's skin.

But, since an RFID implant is commonly inserted in a person's skin between the thumb and forefinger, it can be removed somewhat simply. One report claims removal is akin to a splinter, though a splinter the size of a grain of rice probably requires some sharp tools. Conceivably, removal might look like something from a PG-13 horror movie, but still relatively easy.

3. Injury Liability

The FDA has noted that, in rare situations, there is a risk of infection or that the chip might dislodge and go elsewhere in the body. Treating an infection may be simple enough if detected early, and the losses to an employer can be mitigated. Nevertheless, there could be rather significant damages from an injury claim resulting from a RFID implant injury. A liability waiver may or may not be enough to protect an employer.

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