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.
EEOC Gov't-wide Records System; Rehabilitation Act/GINA: Confidentiality of Medical/Genetic Information
November 9, 2012
Melba D. Moye
National Transportation Safety Board
Office of the Chief Information Officer
Records Management Division
490 L’Enfant Plaza SW
Washington, DC 20594-2000
Re: 77 FR 62060, Notice of Revised Systems of Records
Dear Ms. Moye:
The U.S. Equal Employment Opportunity Commission (“EEOC” or “the Commission”) submits this comment in response to the National Transportation Safety Board’s (NTSB’s) notice of its revised systems of records, published in the Federal Register on October 11, 2012.(1) 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)
As indicated below, we recommend that NTSB remove the Equal Employment Opportunity Discrimination Complaint Records System, NTSB-7, from its Records System. In addition, we recommend that NTSB amend the routine uses for records maintained in NTSB-28 to avoid 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).
We recommend that NTSB remove NTSB-7, the Equal Employment Opportunity (EEO) Discrimination Complaint Records System, from its Records System.(3) EEOC has a government-wide system of records, EEOC/GOVT-1, Equal Employment Opportunity in the Federal Government Complaint and Appeal Records, which covers each agency’s EEO complaint records.(4) EEOC/GOVT-1 supersedes any individual agency’s system of records covering federal sector EEO complaint records. Removing NTSB-7 from NTSB’s Records System will avoid any redundancies and any inconsistencies there may be between NTSB-7 and EEOC/GOVT-1.
Routine Uses in NTSB-28 and Appendix A
We also recommend that NTSB consider revising the routine uses identified in the Employee Medical Folders Records System, NTSB-28, and Appendix A (as applied to this records system) to avoid any unintended legal conflicts with the Rehabilitation Act and GINA.(5)
Rehabilitation Act of 1973, as amended
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.”(6) 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.(7) The Commission also has interpreted the Rehabilitation Act to allow agencies to disclose information for workers’ compensation and insurance purposes.(8) 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.(9)
The Commission’s own Reasonable Accommodation Records System identifies four specific routine uses pursuant to the Privacy Act that permit the agency:
The first and fourth recognized routine uses are consistent with the exceptions to confidentiality under Section 501 of the Rehabilitation Act. 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.
We believe that the situations in which NTSB-28 and Appendix A (as applied to NTSB-28) would permit disclosure of medical information or other information related to an employee’s request for, or receipt of, a reasonable accommodation likely exceed what is legally permissible under the Rehabilitation Act. Accordingly, we recommend that NTSB review and revise the disclosure provisions in NTSB-28 and Appendix A as necessary to prevent any unintended legal conflicts with the Rehabilitation Act.
Title II of the Genetic Information Nondiscrimination Act of 2008
EEOC’s most recent Systems of Records was published prior to the enactment of Title II of the Genetic Information Nondiscrimination Act of 2008.(11) As a result, our Records Systems do not yet reference our obligations pursuant to this statute. But we want to point out that GINA prohibits discrimination on the basis of genetic information, 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. 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.(12)
As medical documentation maintained in NTSB-28 and Appendix A (as applied to NTSB-28) may contain information regarding an applicant’s, employee’s, or former employee’s genetic information, we recommend that NTSB review the disclosure provisions in NTSB-28 and Appendix A to ensure that these provisions 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 Lisa Schnall at (202) 663-4640.
Peggy R. Mastroianni
(1) See Privacy Act of 1974, as Amended; Revisions to Existing Systems of Records, 77 Fed. Reg. 62,060 (Oct. 11, 2012).
(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) Privacy Act of 1974, as Amended; Revisions to Existing Systems of Records, 77 Fed. Reg. at 62,065 - 67.
(4) Privacy Act of 1974; Publication of Notices of Systems of Records and Proposed New Systems of Records, 67 Fed. Reg. 49,338, 49,354 -55 (July 30, 2002).
(5) We note that there is an Office of Personnel Management government-wide system of records notice, OPM/GOVT-10, Employee Medical File System Records, which might cover some or all of the records in NTSB-28. See Privacy Act of 1974; Publication of Notice of Systems of Records, a Proposed New Routine Use, New Category of Records and an Amendment of a Current Category of Records, 71 Fed. Reg. 35342, 35360 (June 19, 2006).
(6) 29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(1) (2012). 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).
(7) 29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(1) (2012).
(8) 29 C.F.R. § 1630, App. § 1630.14(b) (2012).
(9) Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1630.15(e) (2012).
(10) Privacy Act of 1974; Publication of Notices of Systems of Records and Proposed New Systems of Records, 67 Fed. Reg. 49338, 49354 (July 30, 2002).
(11) Id. See also 42 U.S.C. § 2000ff et seq.
(12) 42 U.S.C. § 2000ff-5; Regulations Under the Genetic Information Nondiscrimination Act of 2008; Final Rule, 29 C.F.R. § 1635.9 (2012).
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