EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Disability Related Inquiries and Medical Examinations

U.S. Department of Health & Human Services
Assistant Secretary for Planning and Evaluation
Attention: Privacy-P, Room G-322A
Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, DC 20201

Re: Proposed Rule: Standards for Privacy of Individually Identifiable Health Information

64 Fed. Reg. 59,918 (Nov. 3, 1999): Application to the Department of State

To Whom It May Concern:

The Equal Employment Opportunity Commission (EEOC) respectfully requests that the Department of Health & Human Services (DHHS) consider the following comments to the referenced Proposed Rule notwithstanding the closure of the formal comment period.

It is the position of the EEOC that the Proposed Rule, giving the State Department broad authority to obtain and use protected health information relating to its employees and other federal employees serving under Chief of Mission authority, is inconsistent with the limitations imposed on that Department under section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. Therefore, we respectfully request that DHHS reconsider this section of the Proposed Rule. The following comment first provides a brief review of the relevant provisions of the Rehabilitation Act and, second, addresses the text in the Preamble and Part 164 of the Proposed Rule that concerns the State Department.

The Rehabilitation Act

Section 501 of the Rehabilitation Act prohibits federal sector employers from discriminating in employment against qualified individuals with disabilities. The Rehabilitation Act applies to all aspects of the employment relationship.

Of particular relevance here, the Rehabilitation Act restricts the circumstances in which employers may conduct medical examinations or make disability-related inquiries of their employees. See 29 C.F.R. §§ 1630.13, 1630.14. ⁽¹⁾ Specifically, the Rehabilitation Act permits an employer to conduct a medical examination or make a disability-related inquiry of a current employee only where the examination or inquiry is job-related and consistent with business necessity. Id. § 1630.14(c). A medical examination or disability-related inquiry is job-related and consistent with business necessity where an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at 15, 8 Fair Empl. Prac. Man. (BNA) 405:7461, 7468-69 (1997). An employer also may conduct voluntary medical examinations that are part of an employee health program as long as the information obtained is collected and maintained in a medical file and treated as a medical record. 29 C.F.R. § 1630.14(d)(1). This provision allows an employer to inform supervisors and managers of any workplace restrictions on the work or duties of an employee following a voluntary medical examination. Nothing in this regulation, however, or elsewhere in the statute, allows employers to conduct medical examinations or make disability-related inquiries of current employees that are not job-related and consistent with business necessity.

The Proposed Rule and the State Department

As it states in the preamble to the Proposed Rule, DHHS seeks to "define and limit the circumstances in which an individual's protected health information may be used by or disclosed by others." 64 Fed. Reg. at 59,924. DHHS continues, "We are proposing to make the use and exchange of protected health care information relatively easy for health care purposes and more difficult for purposes other than health care." Id.

Notwithstanding this general rule, DHHS also proposes a broad exception allowing for the disclosure of individual health care information to the State Department "unrelated to its role as a health care provider . . . ." Id. at 59,975. DHHS proposes to exempt the State Department from its general prohibition on the unauthorized disclosure of individual health care information and allow the Department to use the information it receives as a health care provider in making medical clearance determinations as well as for other, related overseas assignment purposes. Proposed section 164.510(m)(4)(ii) would allow the Department to disclose individual health care information concerning current employees for the following purposes: medical clearance for hiring or assignment; determination of conformance to occupational physical standards; continued fitness for duty; and suitability for continued employment at a specific location. Id. at 60,059. DHHS further proposes allowing the Department to use individual health care information as to the employees of other federal agencies under its Chief of Mission authority.

The DHHS Proposed Rule gives the State Department the right to use individual health care information, which it has obtained as a health care provider, in a manner that conflicts with the Rehabilitation Act rights of the Department's employees and other federal employees serving abroad under Chief of Mission authority. There is nothing in the Proposed Rule that would permit the State Department to conduct a medical examination or make disability-related inquiries of current employees only if the examination or inquiry were job-related and consistent with business necessity. To the contrary, the Proposed Rule would allow the State Department to use the private individual health care information that it obtains as a health care provider in situations where it has no reasonable basis to believe that a Department employee or other federal employee has a medical condition that may affect his/her job performance or may pose a direct threat.

We request that DHHS revise the Proposed Rule to include a limitation on State Department use of individual health care information by incorporating the Rehabilitation Act standard. Section 164.512(m)(4)(ii) should be redrafted to state the following (new language in italics):

ii) As to members of the Foreign Service and other United States Government employees assigned to serve abroad under Chief of Mission authority, where the Department or the employer of employees assigned to serve abroad under Chief of Mission authority have a reasonable belief, based on objective evidence, that the employee's ability to perform essential job functions of the employee's position will be impaired by a medical condition or the employee will pose a direct threat due to a medical condition.

EEOC appreciates the opportunity to comment on the Proposed Rule and hopes the foregoing has been helpful.

Sincerely,

Ellen J. Vargyas
Legal Counsel

1. The cited regulations were adopted to interpret and provide guidance to private sector employers under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq. Pursuant to the Rehabilitation Act Amendments of 1992, the ADA's employment standards apply to federal applicants or employees under section 501 of the Rehabilitation Act. See Pub. L. No. 102-569 §503(b), 106 Stat 4344 (1992) (codified as amended at 29 U.S.C. §791(g) (1994)). The EEOC has ruled that the Rehabilitation Act Amendments requires application of its ADA regulations and interpretive guidance to the federal sector. See, e.g., Cooper v. Department of Defense, EEOC Petition No. 03980083 (May 20, 1999).

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