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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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.

GINA & Rehabilitation Act: State Department Forms - Medical History and Examination for Foreign Service

October 11, 2011

Department of State Desk Officer
Office of Information and Regulatory Affairs
Office of Management and Budget

Re: DS-1622, DS-1843, DS-1622P, and DS-1843P. Medical History and Examination for Foreign Service, OMB Control No. 1405-0068

To Whom It May Concern:

The Equal Employment Opportunity Commission (EEOC) submits these comments to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) in response to the Department of State’s request for comments on the proposed information collection cited above and published in the Federal Register on September 12, 2011 (76 FR 56271). In order to avoid confusion and possible conflict with Title II of the Genetic Information Nondiscrimination Act (GINA), we request that the Department of State (State) make certain revisions to the information on the forms. We also want to emphasize State’s obligation to comply with the Rehabilitation Act with respect to its use of medical information provided by applicants or employees, particularly in light of recent changes to that law resulting from the ADA Amendments Act of 2008.

Background on the Genetic Information Nondiscrimination Act of 2008

As you know, the EEOC enforces the federal laws that prohibit employment discrimination on the basis of an individual’s race, color, religion, sex, national origin, age and disability. On May 21, 2008, when GINA was signed into law, the EEOC was given authority to enforce a new prohibition on employment discrimination – discrimination on the basis of genetic information. See 42 U.S.C. 2000ff. GINA became effective on November 21, 2009. The EEOC published a final rule implementing the statute on November 9, 2010. See 29 C..FR. part 1635 (2011).

GINA prohibits employers, including the federal government, from using the genetic information of applicants or employees to make employment decisions; from requesting, requiring, or purchasing genetic information of applicants or employees, except in very narrow circumstances; and from disclosing genetic information, except where specifically authorized. See 42 U.S.C. 2000ff-1(a) and (b); 2000ff-5. The statute defines genetic information to include not only genetic tests of individuals and their family members, but also the manifestation of disease or disorder in family members, i.e., family medical history. See 42 U.S.C. 2000ff (4).

Revisions to Privacy Act Notice

The proposed information collection involves four forms, DS-1622 (Medical History and Examination for Foreign Service – for children 11 years and under), DS-1843 (Medical History and Examination for Foreign Service – for individuals 12 and over), DS-1622P (Pre-employment Medical History and Examination for Foreign Service – for children 11 and under) and DS-1843P (Pre-employment Medical History and Examination for Foreign Service – for individuals 12 and over). The top of each form includes an identical statement under the heading “Privacy Act Notice.” The fifth line of this notice states: “The information requested is voluntary [sic] however failure to provide this information may result in denial of medical clearance and affect your Foreign Service eligibility.” Although this sentence appears to have been designed to address possible conflicts with GINA previously discussed by EEOC and State, additional information is necessary to ensure that such conflicts are eliminated.1

1. It would be a violation of GINA’s prohibition on the use of genetic information if an applicant or employee were denied medical clearance or judged ineligible for Foreign Service based on a family member’s refusal to provide medical information, or on the applicant’s or employee’s refusal to provide medical information for a family member. While it is our understanding (based on previous conversations with State officials) that applicants/employees are not in fact denied medical clearance or Foreign Service eligibility because information about a family member’s medical condition was not provided on the forms, the language in the notice suggests otherwise. To remedy this confusion, we suggest that the information under the heading “Privacy Act Notice” be revised, as discussed in detail below.

2. The forms can also be read to mean that a family member’s refusal to provide information about manifested medical conditions, or an employee’s refusal to provide such information for a family member, will result in a denial of an employee’s right to be posted with that family member. Although the GINA regulation, at 29 C.F.R. 1635.8(c)(2), makes clear that employers are permitted to request, require, or purchase genetic information or information about the manifestation of a disease, disorder, or pathological condition of an individual’s family member who is receiving health or genetic services on a voluntary basis (emphasis added), GINA does not allow employers to require this information where family members are not seeking to receive health or genetic services from the employer. The forms should therefore be revised to make clear that information about manifested conditions must be provided for family members seeking to be posted with an applicant/employee AND wishing to receive health or genetic services from Department of State. Again, we have provided suggested language below.

3. Finally, as noted above, GINA prohibits an employer from using family medical history to make employment decisions, such as denying an employee the benefit of being posted with a family member due to that family member’s medical condition. The statement under “Privacy Act Notice” should be revised to make clear that family medical history will never be used to make employment decisions.

Suggested Revisions to DS-1834 and DS-1834P2

After the fourth sentence (“It may also be disclosed pursuant to court order”), the fifth sentence on forms DS-1843 and DS-1843P should be deleted and replaced with two new headings: Notice to Employees/Applicants and Notice to Family Members, as follows:

Notice to Employees/Applicants: Refusal by an applicant or employee to provide the requested information about his or her current medical condition may result in denial of medical clearance and affect Foreign Service Eligibility. However, family medical history of applicants/employees, or the refusal to provide it, will not be used as a basis for employment decisions, including medical clearance decisions, Foreign Service eligibility, or the ability to be posted with family members.

Notice to Family Members: Family members seeking to be posted with an applicant/employee but who do not wish to receive health or genetic services from the Department of State are not required to fill out this form. Family members seeking to be posted with an applicant/employee AND make use of the medical services provided by Department of State at the relevant posting must provide the requested information. The information, or a family member’s or employee’s decision not to provide it, will not be used as a basis for employment decisions about the applicant/employee, including medical clearance decisions, Foreign Service eligibility, or the ability to be posted with family members.

Suggested Revisions for DS-1622 and DS-1622P

After the fourth sentence, the fifth sentence on forms DS-1622 and DS-1622P should be deleted and the notice set forth above under “Notice to Family Members” should be added.

The Rehabilitation Act

Section 501 of the Rehabilitation Act (Section 501), 29 U.S.C. § 791, prohibits federal agencies from discriminating against qualified applicants or employees on the basis of disability. The same standards applicable under title I of the Americans with Disabilities Act (ADA) for determining who is an individual with a disability and what constitutes discrimination apply to federal agencies subject to Section 501. See 29 U.S.C. § 791(g).

Under Title I of the ADA and Section 501, a disability is a physical or mental impairment that substantially limits one or more of an individual’s major life activities, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g). However, as a result of the ADA Amendments Act of 2008, Pub.L. 110-325, 122 Stat. 3553, the definitions of many of the key terms of this familiar three-part definition have changed, and it is now much easier for individuals with a wide range of impairments to establish that they are individuals with disabilities who are entitled to the ADA’s and Section 501’s protections. For example, the term “major life activities” now includes major bodily functions (such as functions of the immune system, normal cell growth, brain, and neurological functions). 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(i)(1)(B). An impairment need not prevent, or severely or significantly restrict, performance of a major life activity to be considered substantially limiting, 42 U.S.C. § 12102(4)(B); 29 C.F.R. § 1630.2(j)(1)ii), and the determination of whether someone has a disability is made without regard to the ameliorative effects of mitigating measures (e.g., medications or assistive devices) used to reduce or eliminate an impairment’s effects. 42 U.S.C. § 12102(3)(E); 29 C.F.R. § 1630.2(j)(vi). An employer regards an individual as having a disability if it takes some prohibited action (e.g., fails to hire or terminates the person) based on an impairment that is not transitory (lasting or expected to last for six months or less) and minor. 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(l).

Although we are not now recommending specific changes to the forms to meet requirements of the Rehabilitation Act, we emphasize that State may not use any information from the forms to discriminate on the basis of disability. For example, if State withdraws a job offer or denies an employee a particular posting on the ground that the employee’s impairment would constitute a safety risk, the employee would be covered under the “regarded as” definition of disability. State would therefore have to demonstrate that the employee’s impairment posed a “direct threat,” that is, a significant risk of substantial harm. State would also have to provide a reasonable accommodation to any employee with a substantially limiting impairment or a record of such an impairment who has requested and needs such an accommodation, absent undue hardship.

Conclusion

Thank you for the opportunity to provide these comments in response to the proposed information collection. We would be happy to meet with you to discuss the issues we have raised or to answer any questions that you have. Please feel free to contact Chris Kuczynski, Assistant Legal Counsel, at 202-663-4665 or Senior Attorney Advisor Kerry Leibig at 202-663-4516.

Sincerely,

/s/
Peggy R. Mastroianni
Legal Counsel

Footnotes

1 DS-1843 (question 13) and DS-1622 (question 12) include other statements that may have been intended to eliminate conflict between the forms and GINA. Although the information provided is useful, it does not fully correct the confusion that will be caused by the wording of the Privacy Act Notice. To ensure that applicants/employees and their family members understand which questions they must answer, which questions they may answer if they choose to do so, and the consequences of these decisions, the revisions described above are necessary.

2 We are not familiar with the terminology used by Department of State to describe Foreign Service postings and therefore may be suggesting the use of inaccurate language. We are available to discuss revisions to these suggestions at the convenience of State Department officials.

This page was last modified on October 25, 2011.