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.

November 2, 2012

Rehabilitation Act: Confidentiality of Medical Information

Kimberly Keravuori
Strategy Division (SP)
Room 4100
National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740-6001

Re: Notice of the Establishment of New Privacy System of Record, NARA 44

Dear Ms. Keravuori:

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) submits this comment in response to the National Archives and Records Administration's (NARA) request for comments on its proposal to establish a new privacy system of records titled NARA 44, Reasonable Accommodation Request Records (NARA 44).⁽¹⁾  The Commission enforces Section 501 of the Rehabilitation Act of 1973, as amended (the Rehabilitation Act), which prohibits federal agencies from discriminating against qualified applicants or employees on the basis of disability.⁽²⁾ 

NARA 44 will be used to collect information on current and former NARA applicants and employees who have requested a reasonable accommodation for a disability pursuant to the Rehabilitation Act.⁽³⁾  The information in the records may include the applicant's or employee's name, contact information, medical records and other information related to the processing of the accommodation request.⁽⁴⁾  Due to the sensitive nature of such information, the Privacy Act of 1974, 5 U.S.C. § 552a (Act), regulates how federal agencies must maintain, use, and disseminate covered records.  As relevant here, the Act prohibits an agency from disclosing an individual's records absent his express written consent, unless the disclosure falls within one of the Act's twelve exceptions.⁽⁵⁾  Under one of the Act's exceptions, an agency is permitted to disclose an individual's records for a "routine use."⁽⁶⁾  NARA's routine uses for disclosure include situations that may conflict with the Rehabilitation Act's confidentiality requirements.⁽⁷⁾  Therefore, the Commission recommends that NARA review and revise its routine uses for NARA 44 as appropriate to comply with the Rehabilitation Act. 

Background

Among other things, the Rehabilitation Act requires that when federal agencies obtain medical information from applicants and employees, they must collect and maintain such information on separate forms and in separate medical files and treat it as a "confidential medical record."⁽⁸⁾  Agencies may disclose an applicant's or employee's medical information only in limited circumstances.⁽⁹⁾  Specifically, agencies may share medical information with supervisors and managers who need to know about an employee's work restrictions and necessary accommodations; first aid and safety personnel if an employee's disability might require emergency treatment or special procedures; and government officials investigating compliance with the Rehabilitation Act.⁽¹⁰⁾  Additionally, the Commission has concluded that the Rehabilitation Act permits disclosure of medical information for workers' compensation and insurance purposes.⁽¹¹⁾ Moreover, although not specifically related to confidentiality, a provision in EEOC's ADA regulations allows employers to assert as a defense that a particular action is "required or necessitated by another Federal law or regulation. . . ."⁽¹²⁾

The Commission's Routine Uses

The Commission's own Reasonable Accommodation Records System identifies four specific routine uses pursuant to the Privacy Act that permit the agency:

1. to disclose information to medical personnel to meet a bona fide medical emergency;
2. to disclose information to another Federal agency, to a court, or a party in litigation before a court or in an administrative proceeding being conducted by a Federal agency when the Government is a party to the judicial or administrative proceeding;
3. to disclose information to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of the individual; and
4. to disclose to an authorized appeal grievance examiner, formal complaints examiner, administrative judge, equal employment opportunity investigator, arbitrator or other duly authorized official engaged in investigation or settlement of a grievance, complaint or appeal filed by an employee.⁽¹³⁾

The first and fourth routine uses are consistent with the Rehabilitation Act's exceptions to the confidentiality requirements.  The second routine use involves disclosure of relevant information as part of a proceeding in which the Government is a party, and the third disclosure would occur only when the individual whose information is being disclosed has requested a member of Congress to make an inquiry on the individual's behalf.

NARA's Routine Uses

The Commission believes that some of the eight situations in which NARA would permit disclosure of information related to an applicant's or employee's request for, or receipt of, a reasonable accommodation may exceed what is legally permissible under the Rehabilitation Act or what is appropriate as a routine use of such information.⁽¹⁴⁾ Accordingly, the Commission recommends that NARA review and revise the disclosure provisions in NARA 44 as necessary to prevent any unintended legal conflicts.

Thank you for the opportunity to provide these comments in response to the proposed information system.  I encourage you to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579 or Senior Attorney Advisor Tanisha Wilburn at (202) 663-4909 to discuss any of the issues we raised in this letter in further detail. 

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

FOOTNOTES

(1)   NARA published this proposal in the Federal Register on October 3, 2012.  77 Fed. Reg. 60,473. 

(2)  29 U.S.C. § 791 et seq.  See also 29 U.S.C. § 791(g) (applying the standards under Title I of the Americans with Disabilities Act of 1990 to the Rehabilitation Act).

(3)  77 Fed. Reg. at 60,476. 

(4)   Id. 

(5)  5 U.S.C. § 552a(b).   

(6)   Id. § 552a(b)(3). 

(7)   See Appendix A: Routine Uses, Nat'l Archives and Records Admin., http://www.archives.gov/foia/privacy-program/appendix-a.html (last visited on October 31, 2012). 

(8)   29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(1).  See also 29 U.S.C. § 791(g) (applying the standards under Title I of the Americans with Disabilities Act of 1990 to the Rehabilitation Act).

(9)  29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(1).   

(10)   Id. 

(11)   Id. Pt 1630, App. § 1630.14(b).

(12)   Id. § 1630.15(e). 

(13)  Privacy Act of 1974; Publication of Notices of Systems of Records and Proposed New Systems of Records, 67 Fed. Reg. 49,338, 49,354 (July 30, 2002).

(14)   See Appendix A supra note 7. 

This page was last modified on December 6, 2012.