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: FMLA----Privacy of Medical Information----Reasonable Accommodation

February 16, 2007

Richard M. Brennan
Senior Regulatory Officer
Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor
Room S-3502
200 Constitution Ave., NW.
Washington DC 20210

Dear Mr. Brennan:

The Equal Employment Opportunity Commission (Commission or EEOC) submits this letter to the Department of Labor (DOL) in response to DOL's request for information regarding the Family and Medical Leave Act (FMLA). 71 Fed. Reg. 69504 (December 1, 2006).

As you know, the EEOC enforces the federal laws that prohibit employment discrimination, including Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., which prohibits discrimination on the basis of disability, and Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq., which prohibits discrimination on the bases of race, color, religion, sex, and national origin. The EEOC also has responsibility under Executive Order 12067 to coordinate the federal government's enforcement of laws, executive orders, regulations, and policies that require equal employment opportunity without regard to race, color, religion, sex, national origin, age or disability. 43 Fed. Reg. 28967 (July 5, 1978). The December 1, 2006 request for information about the FMLA (hereinafter "Request") provides another opportunity for our agencies to work together so that the overlap between these laws does not result in the incorrect application of either law.

As a general matter, we urge DOL to make clear that any regulatory changes to the FMLA will have no effect on the protections provided by the ADA and Title VII.⁽¹⁾ It would also be helpful to remind interested parties of the EEOC's Fact Sheet on The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (Fact Sheet on FMLA, ADA, and Title VII) (November 1995) which provides technical assistance on some questions that arose initially under these laws.In addition, the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Reasonable Accommodation Guidance) (as revised, October 17, 2002), provides information about handling requests for leave and part-time schedules from employees covered by both the ADA and the FMLA. See questions 21 and 23.

We have several specific comments related to issues raised in your December 1, 2006 request, as follows.

Privacy of Medical Information

The Request states that the FMLA's overlap with other workplace requirements is a potential source of confusion, and cites as an example the EEOC's 2000 guidance concerning the privacy of employee medical information. Because the Request does not provide more information, it is not possible to analyze in these comments the specific concerns to which the Request alludes. We do note, however, that the EEOC's most detailed statement on the privacy of medical information under the ADA and the FMLA was in its 1995 Fact Sheet on the FMLA, the ADA and Title VII. There, the EEOC stated that employers may keep a single confidential medical file for each employee, separate from the usual personnel file, for medical documentation under both the ADA and the FMLA as long as employers adhere to the ADA's confidentiality requirements and its limited disclosure exceptions. See Fact Sheet on the FMLA, ADA, and Title VII question 11.⁽²⁾ The EEOC's 2000 guidance did not further address this issue; in fact, this guidance expressly limited its discussion to employee leave pursuant to the ADA rather than the FMLA. See Equal Employment Opportunity Commission's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 27, 2000), note 64, before questions 16 and 17. The 2000 guidance, therefore, left the statement in the 1995 Fact Sheet unchanged.

Interaction with the Health Insurance Portability and Accountability Act (HIPAA)

The Request also states that clarification may be needed with regard to the interaction between the FMLA and HIPAA. Based on the EEOC's enforcement experience since the effective date of the HIPAA confidentiality requirements, we agree that clarification of the interaction between HIPAA and the ADA and the FMLA would be beneficial. This clarification would be helpful to employers seeking medical information to substantiate employees' requests for leave, and also to the enforcement agencies themselves for purposes of investigations.

Modification of Existing Job Duties

Under the current FMLA regulations, an employee is entitled to FMLA leave if s/he is unable to perform the functions of his/her position due to a serious health condition. See 29 CFR
§ 825.112(a)(4). This definition is satisfied if the employee's health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position. See 29 CFR § 825.115. Current FMLA regulations prohibit an employer from changing the essential functions of the job in order to prevent the employee from taking leave. See 29 CFR § 825.220(b)(2). In the Request, DOL asks what the implications would be if it removed this prohibition or, as phrased in the Request, "permit[ed] an employer to modify an employee's existing job duties to meet any limitations caused by the employee's serious health conditions, while maintaining the employee's same job, pay and benefits." See 71 Fed. Reg. 69509.

From the EEOC's perspective, such an alteration to the FMLA rule could raise new ADA issues related to essential functions and reasonable accommodation. Under the ADA, employers are never required as part of their reasonable accommodation duty to restructure jobs by removing essential functions, although they may do so if they wish. See Reasonable Accommodation Guidance, text preceding question 16. Commission guidance is silent, however, on the question of whether an employer's reasonable accommodation duty could be satisfied by reallocating essential functions with the express purpose of precluding leave as a reasonable accommodation. Commission guidance on the broader issue of providing an accommodation that requires an employee to remain on the job in lieu of leave focuses only on removing marginal functions and on temporary transfers. Such changes are permissible under the ADA only if they do not interfere with the employee's ability to address his/her medical needs and the employer restores the full duties of the position once the accommodation is no longer needed. See Reasonable Accommodation Guidance, question 20. In order to provide further clarification under the ADA, the EEOC will need to be apprised of the precise nature of the proposed FMLA regulatory change.

Medical Certifications

The Request solicits input on the FMLA's regulatory provision that permits an employer to contact the employee's health care provider only through the services of its own health care providers (29 CFR § 825.307). DOL correctly notes that the ADA does not have such a limitation. See Reasonable Accommodation Guidance, question 6; see also Inquiries Guidance, question 11. However, nothing in the ADA prohibits DOL from applying a stricter standard with respect to the FMLA. The EEOC's primary concern with respect to such employer inquiries is that they remain strictly limited in scope to the particular serious health condition for which the employee is seeking leave. See Fact Sheet on FMLA, ADA and Title VII, question 10. The EEOC also emphasizes the importance of maintaining the confidentiality of medical information. See 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 CFR § 1630.14(b)(1).

We hope these comments will be helpful. Please feel free to contact me at 202-663- or Carol Miaskoff, Assistant Legal Counsel for Coordination, at 202-663- .

Sincerely,

/s/

Peggy R. Mastroianni
Associate Legal Counsel

(1)The DOL's December 1st request solicits public views on several issues that would overlap with the ADA when the employee has an ADA disability as well as an FMLA serious health condition, for example, the use of unforeseen, intermittent leave. Regardless of the changes DOL makes to the FMLA rules, the use of leave, including unscheduled/intermittent leave, is a form of reasonable accommodation required by the ADA when necessitated by limitations associated with an employee's ADA-covered disability, absent undue hardship. See Equal Employment Opportunity Commission's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (as revised, October 17, 2002), text preceding question 16. DOL's December 1st request also suggests that the FMLA's recertification and fitness for duty certification requirements may be changed. Requests for periodic updates from an employee on medical leave, and fitness for duty examinations, are subject to the ADA's restrictions on disability-related inquiries and medical examinations. See Equal Employment Opportunity Commission's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 27, 2000), questions 16 and 17.

(2) Those who have further questions about employee medical information and privacy under the ADA should consult Equal Employment Opportunity Commission's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Inquiries Guidance) (July 27, 2000) and a companion technical assistance piece, Questions and Answers: Enforcement Guidance Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act. Both documents are available on EEOC's website at www.eeoc.gov/policy/guidance.html.

This page was last modified on May 2, 2007.