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.

GINA & the Rehabilitation Act: State Department Medical Clearance Update

Submitted via regulations.gov

December 23, 2013

Susan B. Summers
Department of State
Office of Medical Clearances
SA-15 Room 400
1800 North Kent Street
Rosslyn, VA 22209

Re: DS-3057, Medical Clearance Update, OMB Control Number 1405-0131

Dear Ms. Summers:

The Equal Employment Opportunity Commission (EEOC) submits these comments in response to the Department of State's request for comments on the information collection cited above and published in the Federal Register on October 29, 2013. (78 FR 64574). 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 form. 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 and employees.

Revisions to Privacy Act Notice

Genetic Information Nondiscrimination Act

We previously shared our concerns about State's medical clearance process and certain forms used in that process in a public comment in October 2011. See attached EEOC's October 11, 2011 letter, GINA and Rehabilitation Act: State Department Forms – Medical History and Examination for Foreign Service, also available at: http://www.eeoc.gov/eeoc/foia/letters/2011/gina_rehab_act.html.  The October 2011 comment resulted in discussions between EEOC and State in which State agreed to make the changes necessary to ensure that the medical clearance forms at issue no longer conflicted with GINA.  We see from a recent review of these forms that although State did make certain changes, such as citing to the requirements of GINA and warning doctors involved in the medical clearance process not to request genetic information, it did not adopt the language we suggested in our comment.

Given that the Medical Update Form, DS-3057, raises the same problems that we outlined in detail in the attached October 2011 comment, we take this opportunity to resubmit that comment and request that State revise DS-3057 to avoid conflicts with GINA.   In particular, the last sentence of the Privacy Act Notice which states "[f]ailure to provide this information may result in denial of a medical clearance and affect your Foreign Service eligibility," should be deleted and replaced with the two headings outlined on page 2 of the October 2011 comment (Notice to Employees and Notice to Family Members). Similar language appearing in the Instructions section on page 2 of the form should also be revised.

Rehabilitation Act

We further emphasize that State may not use any information from the form to discriminate on the basis of disability, as discussed in more detail in the attached October 2011 letter.

Thank you for the opportunity to provide these comments. 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, Corbett Anderson, Assistant Legal Counsel, at 202-663-4579, or Senior Attorney Advisor Kerry Leibig, at 202-663-4516.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

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