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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.

Rehabilitation Act/GINA: Confidentiality of Medical/Genetic Information

February 27, 2013

Transmitted VIA
www.Regulations.gov

Department of Defense
Office of the Secretary, DoD/JS Privacy Office

Re: FR Docket 2013-01680, DSCA 03, Request for Comments Regarding Addition of a New System of Records – Regional Center Persons/Activity Management System (RCPAMS) and
FR Docket 2013-01694, DHA 19, Request for Comments Regarding Alteration of System of Records – Defense Occupational Environmental Health Readiness System – Industrial Hygiene (DOEHRS-IH)

To Whom It May Concern:

The U.S. Equal Employment Opportunity Commission (EEOC or the Commission) submits this comment in response to two Department of Defense (DOD) notices published in the Federal Register on January 28, 2013:(1) (1) a proposal to add a new system of records, "Regional Center Persons/Activity Management System (RCPAMS)," and (2) a proposal to alter a system of records, "Defense Occupational Environmental Health Readiness System – Industrial Hygiene (DOEHRS-IH)." The EEOC offered similar comments in response to DOD's November 21, 2012, notice of its intent to alter the Defense Enrollment Eligibility Recording System (DEERS). See EEOC's public comment in response to FR Docket 2012-28240 (December 17, 2012). The EEOC offers these comments as the federal agency responsible for enforcing the federal equal employment opportunity laws that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, disability, and genetic information. The laws enforced by EEOC also prohibit retaliation for filing a discrimination complaint, participating in a discrimination proceeding, or otherwise opposing discrimination.(2)

RCPAMS will contain records of DOD civilian employees, including "health information . . . spouse information and child information." The notice indicates that in addition to the disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records in RCPAMS may also be disclosed outside the DOD under the "DOD Blanket Routine Uses."

DOEHRS-IH contains records of DOD civilian employees, contractors, and, in some cases, spouses and dependents of these individuals, including a variety of records which may include medical information. The notice indicates that in addition to the disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records in DOEHRS-IH may also be disclosed outside the DOD under the "DOD Blanket Routine Uses," as well as in four other situations.

As explained below, the scope of the routine uses in RCPAMS and DOEHRS-IH may conflict with the requirements of the Rehabilitation Act of 1973, as amended (Rehabilitation Act), and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA).(3)

Rehabilitation Act of 1973

The Rehabilitation Act, which prohibits discrimination on the basis of disability, requires that federal agencies that lawfully obtain medical information about applicants, employees, and former employees collect and maintain the information on separate forms and in separate medical files and treat it as a "confidential medical record." Disclosure of this information is permitted in limited circumstances. Specifically, agencies may share medical information with supervisors and managers who need to know about an employee's work restrictions and necessary accommodations; with first aid and safety personnel if an employee's disability might require emergency treatment or assistance in the event of an emergency; and with government officials investigating compliance with the Rehabilitation Act.(4) The Commission also has interpreted the Rehabilitation Act to allow agencies to disclose information for workers' compensation and insurance purposes.(5) Finally, an agency may have a defense to a disability discrimination complaint if the challenged disclosure or action is required or necessitated by another federal law or regulation.(6)

The RCPAMS notice indicates that the system will contain "health information" about DOD employees. Although no further details about this information are provided, it is likely that the "health information" contained in RCPAMS will include medical information subject to the requirements of the Rehabilitation Act.

It is not clear from the DOEHRS-IH notice whether the categories of records in the system include medical information subject to the Rehabilitation Act's disclosure rules. We note, however, that in describing DOD's obligations under the Health Insurance Portability and Accountability Act of 1996, the notice explains that the system of records may contain individually identifiable health information. Given this, it seems probable that the records within DOEHRS-IH include medical information subject to the requirements of the Rehabilitation Act.

We believe that the situations in which RCPAMS and DOEHRS-IH would permit disclosure of medical information likely exceed what is legally permissible under the Rehabilitation Act. Accordingly, we recommend that DOD review and revise the disclosure provisions of RCPAMS and DOEHRS-IH as necessary to prevent any unintended legal conflicts with the Rehabilitation Act.

Title II of the Genetic Information Nondiscrimination Act of 2008

GINA prohibits discrimination on the basis of genetic information and requires that federal agencies and other covered entities that lawfully obtain genetic information about applicants, employees, and former employees maintain the information in separate medical files and treat it as confidential. Covered entities may disclose genetic information only in very limited circumstances.(7) Specifically, the information may be disclosed to the employee or to the employee's relative about whom the information pertains, upon receipt of the employee's or the employee's relative's written request; to an occupational or other health researcher conducting research in compliance with 45 C.F.R. part 46; in response to a court order, but only the genetic information expressly authorized by the order; to government officials investigating compliance with Title II of GINA, if the information is relevant to the investigation; for FMLA or state law family and medical leave certification purposes; and to a public health agency, if information about the manifestation of a disease or disorder concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.(8)

"Genetic information" includes, among other things, information about an individual's genetic tests and information about the manifestation of disease and disorder in family members, i.e., family medical history.

Although the RCPAMS notice does not provide any description of the type of "health information" the system will include, it is likely that such a broad category will contain genetic information. Moreover, the notice indicates that RCPAMS will contain "spouse and child information." To the extent that this includes information about the manifestation of disease or disorder in the spouses or children of DOD employees, it is genetic information as defined by GINA.

Similarly, DOEHRS-IH appears to include at least some medical information about individual employees, which may include genetic information. The system also includes at least some information about spouses and dependents of DOD employees. To the extent that this includes information about the manifestation of disease or disorder in the spouses, children, or other family members of DOD employees, it is genetic information as defined by GINA.

GINA prohibits disclosure of genetic information except according to one of the exceptions described above. We therefore recommend that DOD review the disclosure provisions in RCPAMS and DOEHRS-IH to ensure that they comply with GINA.

Thank you for the opportunity to provide these comments. We welcome the opportunity to discuss the issues raised in this letter in further detail. Should you have questions or comments, please feel free to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579 or Senior Attorney Advisor Kerry Leibig at (202) 663-4516.

Sincerely,

/s/

Peggy R. Mastroianni

FOOTNOTES

(1) See Privacy Act of 1974; System of Records, 78 Fed. Reg. 5781 and 5785 (Jan. 28, 2013).

(2) See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Section 501 of the Rehabilitation Act of 1973,
29 U.S.C. § 791; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq.

(3) Because neither the Rehabilitation Act nor GINA applies to military personnel, this comment is made solely in regard to the records of DOD civilian employees (former and current) and their family members.

(4) 29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(1).

(5) 29 C.F.R. § 1630, App. § 1630.14(b).

(6) 29 C.F.R. § 1630.15(e).

(7) In addition to the permissible disclosures described below, GINA's requirements and prohibitions do not apply to the Armed Forces Repository of Specimen Samples for the Identification of Remains; limit or expand the protections, rights, or obligations of employees or employers under applicable workers' compensation laws; limit the authority of a Federal department or agency to conduct or sponsor occupational or other health research in compliance with the regulations and protections provided for under 45 CFR part 46; or limit the statutory or regulatory authority of the Occupational Safety and Health Administration or the Mine Safety and Health Administration to promulgate or enforce workplace safety and health laws or regulations. 42 U.S.C. § 2000ff-8; Regulations Under the Genetic Information Nondiscrimination Act of 2008; Final Rule, 29 C.F.R. § 1635.11(a). (2012).

(8) 42 U.S.C. § 2000ff-5; 29 C.F.R. § 1635.9 (2012).

This page was last modified on April 8, 2013.