Healthcare for female employees is a key area for businesses in the bid to retain and recruit talented people, but could new women’s health apps breach data privacy – potentially leading to serious consequences for women working in the US in the wake of the overruling of Wade v Roe? Alison Sneddon and Deborah Margolis investigate
With the high rates of women leaving the workplace post-pandemic and increasing awareness around the impact of menopause on employees, employers are exploring whether offering specific women’s healthcare benefits will help move the needle on recruitment and retention of women.
There are a number of start-ups and growing businesses in the healthcare and ‘femtech’ space offering solutions to employers in this scenario.
Peppy, a digital health app, connects employees to health experts offering support on menopause and fertility. Its advertising says that 30% of working-age women have experienced at least eight women’s health conditions and 88% of employees would consider changing their job for better fertility benefits.
Other employers are offering access to wellness apps, including fertility and menstrual cycle tracking apps, as part of a package of health and wellbeing initiatives. It’s an exciting and growing area that’s full of potential.
As employers venture into this space, there’s a few questions to consider:
Offering employees access to these benefits is only one part of the puzzle. To have any real impact, the employer’s culture should demonstrate a commitment towards health and wellbeing. Employers are tuning into this by offering bespoke training sessions and engaging with employees on their expectations around health benefits.
It’s also worth recognising that not only women are impacted by women’s health matters. Partners of employees who suffer a miscarriage or who are experiencing the menopause may also benefit from counselling and support.
Likewise, simultaneously offering support for broader wellbeing initiatives and men’s health matters will encourage an atmosphere where all employees feel included and supported.
Data privacy & women’s health
Consumers are becoming increasingly aware of the use of their personal data when engaging with technology. If you’re not paying for the product then you likely are the product. How consumer data is used and sold has been a hot topic for some time but women’s health has become even more sensitive recently following the publication of the US Supreme Court’s decision on abortion rights in Dobbs v Jackson in June this year (which overruled Roe v Wade,1973, and Planned Parenthood v Casey, 1992).
In light of the decision, users of menstrual cycle and fertility tracking apps raised concerns about how their data was being used and who had access to it. Importantly, users were concerned that it may be possible to decipher from their data that they had an abortion (including travelling out of state to have an abortion that was not legal in their home state) and that this data could be shared with law enforcement to potentially prosecute them for related offences. This was followed by a flurry of messaging from fertility and menstrual cycling tracking apps seeking to reassure users that their data is stored anonymously and only shared externally on a limited basis (if at all).
What’s the legal position on this?
In Europe, under the General Data Protection Regulation (GDPR), the use and sharing of health data requires an additional legal justification which needs to be fair and transparently set out in a privacy notice. The common position is that the employee will share the data directly on the app or with the benefits provider as opposed to sharing it with the employer, therefore the employer will not be subject to any data protection obligations in respect of this data.
However, where employers provide third-party benefits, this won’t stop employees raising queries to the employer about the use of their data. It’s recommended that, where employers are introducing any type of healthcare benefit where sensitive topics will be discussed, they consider with the benefits provider in advance:
- Do they have the appropriate data protection policies in place and do they have any helpful FAQs which are made available to users of the benefit?
- Who might employees’ data be shared with? For example, is there any comfort you can provide your staff that their data will not be used for a commercial purpose?
- Given the sensitivity of the data, what IT security/confidentiality measures are put in place to protect the data?
- What will happen to the employees’ data if they no longer want to use the benefit? Will it automatically be deleted?
Being prepared with the answers to these questions will help employers encourage uptake of these benefits in line with their cultural strategy.