Microchip Implantation of Employees

By Daveante Jones

In an ever-evolving world fueled by technology, microchip implantation of employees has become a way to assist employers in making their workplace more efficient, productive, and secure. As is expected, however, many people are still uneasy about the new trend.

Microchipping started out as a tool for projects focused on health uses like heart-rate or blood-sugar monitoring. Then it made its way into the employment sector. Back in 2004, Mexico’s attorney general and at least 160 of his staff, including top federal prosecutors and investigators, were implanted with microchips to get access into restricted areas inside the attorney general’s headquarters. See Will Weissert, Microchips implanted in Mexican officials, NBCNEWS.com (July 14, 2004, 9:21 P.M.), http://www.nbcnews.com/id/5439055/ns/technology_and_science-tech_and_gadgets/t/microchips-implanted-mexican-officials/#.XNLjXspKiUk. A January 2019 Fortune magazine article reported that more than 4,000 people in Sweden and other parts of Europe have been “chipped” by a small Swedish startup—Biohax International. See Fortune, Is ‘Biochipping’ a Good Idea, http://fortune.com/longform/biochipping-biohax-microchip/. A report by MarketsandMarkets Research in India estimates that the global biochip market will be worth about $17.75 billion by 2020. See MarketsandMarket Research, Biochips Market Worth $17.75 Billion by 2020, https://www.marketsandmarkets.com/PressReleases/biochips.asp.

Recently, Biohax teamed up with Three Square Market to bring microchipping to Wisconsin. Employees from Three Square Market, a tech company, had small microchips the size of a grain of rice implanted between their thumb and index finger. According to MIT Technology Review, as of last August around 80 of the company’s 250 employees had microchips. See MIT Technology Review, This Company Embeds Microchips in its Employees, and They Love It, https://www.technologyreview.com/s/611884/this-company-embeds-microchips-in-its-employees-and-they-love-it/.

The employees are able to enter the workplace, log onto their computers, and get snacks from the vending machine with the wave of a hand. While it may seem like microchipping is new to the United States, it dates back until at least 2006. It was then that CityWatcher.com, a Cincinnati video surveillance company, implanted some of its employees with microchips to experiment with restricting access to vaults where data and images were kept for police departments that the company was providing surveillance for. See Company Implants ID Chips into Employees’ Arms, FOXNEWS.com (last updated Jan. 13, 2015), https://www.wnd.com/2006/02/34751/.

Although microchipping is not prevalent in American workplaces yet, state legislatures have started passing laws regulating microchip implantation to prepare for the impending workplace trend. One of the most recent states to pass a law is Arkansas. State Rep. Stephen Meeks, chair of the Arkansas legislature’s Technology Committee, introduced Act 516, which prohibits employers from requiring employees to undergo microchip implantation. The reporting surrounding Act 516 when it was initially introduced highlighted that there are no Arkansas businesses currently using employee microchip implantation. Wanting to be proactive, however, Rep. Meeks stated, “The idea here is to set the ground rules before the technology comes to our state to protect workers[.]”  See Jessi Tenure, 2019 Session: Bill Would Regulate Microchipping Employees in Arkansas, KARK.com (last updated Jan. 22, 2019, 5:47 PM), https://www.kark.com/news/local-news/2019-session-bill-would-regulate-microchipping-employees-in-arkansas/1708706584.

Arkansas is a part of a small number of states, including California (Cal. Civ. Code § 52.7), Maryland (Md. Code Ann. § 20-1902), Missouri (Mo. Rev. Stat. § 285.035), North Dakota (N.D. Cent. Code § 12.1-15-06), Oklahoma (Okla. Stat. tit. 63, § 1-1430), and Wisconsin (Wis. Stat. § 146.25), that are currently regulating microchip implantation. Be that as it may, other than Arkansas, these laws only prohibit employers from requiring employees to undergo microchip implantation. Therefore, issues such as who pays for microchip implantation when employees do choose to participate, who pays for any medical issues that may arise from microchip implantation, and the removal process when an employee resigns or is terminated are left up for debate.

Arkansas’ Act 516, among other things, requires employers to:

• gain written consent from employees before microchip implantation;

• have the microchip removed within 30 days of the employee’s request for removal at any time;

• pay all the costs associated with implanting and removing the microchip;

• pay all the medical costs incurred by the employee as a result of any bodily injury to the employee caused by the implantation of the microchip or the presence of the microchip in the employee’s body; and

• disclose to the employee the data that may be maintained on the microchip and how the data that is maintained on the microchip will be used by the employer.

Most of the laws do address the ramifications of violating the prohibition. California, Maryland, Oklahoma, and Wisconsin law mandate a $10,000 fine for any employers who violate the prohibition, while Missouri and North Dakota classify a violation of the prohibition as a class A misdemeanor.

Another state that is attempting to regulate microchip implantation is Nevada. Nevada Assemblyman Skip Daly recently introduced a bill in the state’s most recent legislative session that would prohibit microchip implantation altogether for state employers if it is not for certain health-related purposes. The United States Transhumanist Party believes this goes too far. The party filed a letter in opposition of the bill arguing, among other things, that the health-related purposes exception is too narrow and interfering with a person’s right to microchip implantation could possibly implicate the Americans with Disabilities Act as the microchip may be a reasonable accommodation for disabled individuals who may need an easier way to access building areas. See United States Transhumanist Party, Letter of Opposition to AB 226, https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=41573&fileDownloadName=AB%20226_Letter%20of%20Opposition_Justin%20Waters%20United%20States%20Transhumanist%20Party.pdf.

The efficiency and security benefits of microchipping are hard to ignore. This highlights the inevitable issue that will arise when microchip implantation becomes the norm and not the exception—the peer pressure employees may feel that make them feel obligated to undergo microchip implantation. Many employers will have to figure out how to navigate this. Take for instance, Arkansas’ Act 516 prohibits employers from coercing employees into consenting to undergo microchip implantation, creating a hostile work environment for employees who choose not to undergo microchip implantation, and withholding company advancement and salary or wage increases from employees who choose not to undergo microchip implantation. Employers who choose to partake in microchip implantation will have to develop policies that coincide with these types of restrictions.

Any employer considering jumping into the world of microchip implantation should approach it carefully. Ensuring compliance with state law, obtaining consent from employees, and being transparent about all aspects of the microchips’ use will help avoid potential legal issues. In addition, making it thoroughly clear that employees are in no way obligated to undergo microchip implantation is vital.