The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


ADA: Confidentiality of Medical Information

March 21, 2000

Dear :

This is in response to your letter to LaTanga Rush, Information Specialist, Office of Legal Counsel, Equal Employment Opportunity Commission (EEOC), dated February 11, 2000, regarding the Americans with Disabilities Act of 1990 (ADA).

You asked whether your practices as a vocational rehabilitation specialist seeking to find employment for individuals who have experienced an accident or injury comply with the ADA. Specifically, you state that you send to prospective employers letters which contain information about a person's education, work history, skill level, and medical limitations. You do not mention the name, age, sex, national origin, or specific medical diagnosis of the person you are seeking to place. However, approximately two weeks after you have referred a person to a specific employer, you contact the employer to find out whether the person has applied for work, whether she or he is being considered for employment, and whether or not reasonable accommodations may be necessary. You also noted that you contact employers by telephone to determine whether a job is suitable for a person, with or without reasonable accommodation, prior to referring the person to the employer.

In a June 4, 1998 letter to EEOC Legal Counsel Ellen J. Vargyas, you described a nearly identical scenario and asked many of the same questions raised in your letter to Ms. Rush. On August 5, 1998, we provided you a detailed response that discusses the ADA's provisions governing confidentiality of medical information. The analysis in that letter would apply to the situation you described in your February 11, 2000 letter. (1)

A copy of our earlier letter to you is enclosed for your reference. In addition to the analysis in that letter, please note that the ADA's confidentiality provisions apply to individuals with and without disabilities. See 42 U.S.C. § 12112(3)(b), (4)(C); 29 C.F.R. § 1630.14(b)(1), (c)(1); Cossette v. Minnesota Power & Light, 188 F.3d 964 (8th Cir. 1999). (2)

Finally, you opined that you are not covered by the ADA because you do not work for a company that has more than 15 employees. However, the requirement that an entity have at least fifteen employees in order to be covered by the ADA does not apply to the employment referral activities of employment agencies. Covered entities under Title I of the ADA include employment agencies. 42 U.S.C. § 12102; 29 C.F.R. § 1630.2(b). The definition of an employment agency is the same under the ADA as it is under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII). 42 U.S.C. § 12111(7). Section 701(c) of Title VII defines the term "employment agency" as "any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such person . . . ." 42 U.S.C. § 2000e-2(c). Thus, you are subject to Title I of the ADA with respect to your employment referral activities, even if you are not covered as an employer.

I hope that this information has been helpful to you. Please note, however, that this letter is an informal discussion of the issues raised by you and is not an official opinion of the Equal Employment Opportunity Commission. In addition, our failure to address other matters that may have been presented should not be construed as agreement with statements or analysis related to those matters.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division

Attachment


1. We further note that the ADA, as a federal law, would supersede a conflicting state law, such as one that required an employment agency or other covered entity to violate the ADA's confidentiality requirements.

2. Therefore, as to your obligation to keep medical information confidential, it does not matter whether your clients are individuals with disabilities within the meaning of the ADA or not. We noted in your letter, however, some confusion about the ADA's definition of "disability." A person has a "disability" under the ADA if she or he has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having such an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). A person is "qualified" under the ADA if she or he can perform the essential functions of the position held or desired, with or without reasonable accommodation. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m).


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