An EEOC Office of Legal Counsel staff member wrote the following informal discussion letter in response to a Federal Register notice. This letter is intended to provide an informal discussion of the noted issue(s) and does not constitute an official opinion of the Commission.
ADA/Rehabilitation Act & GINA: Acquisition and Confidentiality of Protected Medical and Genetic Information
April 25, 2019
TRANSMITTED VIA E-MAIL
Department of Homeland Security/TSA
Office of Information and Regulatory Affairs
Office of Management and Budget
Re: Request for Comments Regarding TSA’s Transportation Security Officer Medical Questionnaire Information Collection (OMB Control No. 1652-0032)
Dear Sir or Madam:
The U.S. Equal Employment Opportunity Commission (EEOC) submits this comment in response to the request for comments regarding a Transportation Security Administration (TSA) information collection regarding its Transportation Security Officer Medical Questionnaire.(1)
The EEOC enforces the federal laws that prohibit employment discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information.(2) The laws enforced by the EEOC also prohibit retaliation for filing a charge or complaint of employment discrimination, participating in an employment discrimination proceeding, or opposing such discrimination.(3) Further, the EEOC coordinates and leads the federal government’s efforts to eradicate employment discrimination.(4)
As indicated below in greater detail, we recommend that TSA ensure that applicants’ and employees’ medical and genetic information is obtained and maintained in a manner consistent with Section 501 of the Rehabilitation Act of 1973 and Title II of the Genetic Information Nondiscrimination Act of 2008.
Acquisition of Applicants’ and Employees’ Medical and Genetic Information Under Section 501 of the Rehabilitation Act of 1973 and Title II of the Genetic Information Nondiscrimination Act of 2008
Two laws enforced by the EEOC govern the circumstances under which employers, including federal agencies, may lawfully obtain workers’ medical or genetic information.
Section 501 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act), prohibits federal agencies from discriminating against qualified applicants or employees based on disability.(5) Among other things, the Rehabilitation Act restricts the circumstances under which federal agencies may lawfully obtain applicants’ and employees’ medical information.(6) Specifically, before offers of employment are extended, federal agencies may not ask any disability-related questions or require applicants to undergo medical examinations.(7) After an offer is extended and before the applicant begins working, federal agencies may ask disability-related questions and conduct medical examinations, regardless of whether they are related to the job, as long as they do so for all entering employees in the same job category.(8) After employees begin working, federal agencies may only make disability-related inquiries or require medical examinations if they are job-related and consistent with business necessity.(9)
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employment discrimination based on genetic information.(10) Protected genetic information under GINA includes, among other things, genetic test results and family medical history.(11) Similar to the Rehabilitation Act, albeit with different limitations, GINA restricts the circumstances under which federal agencies may lawfully obtain applicants’ and employees’ genetic information. Specifically, federal agencies may obtain applicants’ and employees’ genetic information: (1) if they do so inadvertently; (2) as part of health or genetic services provided on a voluntary basis; (3) agencies may obtain family medical history for certification of relevant leave pursuant to the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies; (4) from commercially and publicly available sources, such as newspapers, books, magazines, and electronic sources, as long as agencies do not access those sources with the intent of obtaining genetic information, and as long as agencies are not likely to obtain genetic information by accessing such sources; (5) for genetic monitoring required by law or provided on a voluntary basis; and (6) agencies that conduct DNA analysis for law enforcement purposes as a forensic laboratory or for human remains identification may obtain genetic information to analyze DNA identification markers for quality control to detect sample contamination.(12)
Recommendations Regarding TSA’s Acquisition of Applicants’ and Employees’ Medical and Genetic Information
Recommendation Regarding TSA’s Acquisition of Applicants’ Medical Information
It is not clear from the Federal Register notices, the questionnaire, or the supporting statement when in the hiring process applicants are asked to complete the Transportation Security Officer Medical Questionnaire. The 60-day Federal Register notice states that “TSA collects relevant medical information from TSO candidates who have successfully completed certain prior steps in the hiring process.”(13) The draft supporting statement for the 30-day Federal Register notice states that “the medical questionnaire information is collected from candidates under employment consideration for TSO positions.”(14) The documents do not, however, specify at what point in the hiring process these medical inquiries or examinations occur.
As noted above, prior to extending an offer of employment, federal agencies may not obtain medical information from or regarding applicants. After applicants begin work, different restrictions apply to agencies’ ability to obtain employees’ medical information or to require employees to undergo medical examinations. We recommend that TSA ensure that completion of the questionnaire and any other requests for medical information from or regarding applicants occur only after offers of employment are extended and before applicants begin work, and that any such inquiries made after applicants begin work comply with relevant legal requirements.
Recommendation Regarding TSA’s Acquisition of Employees’ Genetic Information
As noted above, GINA restricts the circumstances under which employers, including federal agencies, may lawfully acquire genetic information regarding applicants and employees. In particular, among other restrictions, federal agencies may not request or require applicants or employees to provide genetic information during an employment-related medical examination.(15) Moreover, when federal agencies lawfully request medical information from applicants (post-offer) and employees, or their health care providers, we recommend that they warn the worker and/or health care provider from whom the information is requested not to provide genetic information.(16) Federal agencies may use EEOC’s safe harbor language, or develop their own language, for this purpose.(17)
To ensure compliance with GINA, we recommend that TSA revise the Transportation Security Officer Medical Questionnaire instructions to clarify that candidates should not provide genetic information, including unredacted medical records or documentation that includes such information, to TSA or any entities responsible for conducting medical inquiries or examinations on behalf of the agency.(18) To the extent that medical records or documentation that includes genetic information is relevant and responsive to the inquiries in the medical questionnaire, we recommend that TSA instruct candidates to redact such information, or request that their health care provider redact the information, before the material is provided to TSA or other entities involved in medical inquiries and examinations.(19) We recommend that TSA include the definition of “genetic information” under GINA on the medical questionnaire to ensure that applicants and their health care providers understand the type of information that is restricted from disclosure.(20) Finally, we recommend that TSA ensure that any entities that perform or are otherwise involved in medical inquiries or examinations of TSA applicants or employees are aware of, understand, agree to comply with, and do comply with GINA.(21)
Recommendations Regarding Permitted Disclosure of Applicants’ and Employees’ Medical and Genetic Information
Confidentiality Requirements of Section 501 of the Rehabilitation Act of 1973
As well as prohibiting discrimination against applicants or employees based on disability and restricting the circumstances under which federal agencies may obtain applicants’ and employees’ medical information, the Rehabilitation Act requires that federal agencies that lawfully obtain such information collect and maintain the information on separate forms and in separate medical files and treat it as a “confidential medical record.”(22)
Disclosure of medical information governed by the Rehabilitation Act’s confidentiality provisions is permitted only in limited circumstances. Specifically, federal 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 Rehabilitation Act compliance.(23) The EEOC also has interpreted the Rehabilitation Act to allow federal agencies to disclose information for workers’ compensation and insurance purposes.(24)
Confidentiality Requirements of Title II of the Genetic Information Nondiscrimination Act of 2008
GINA also requires that federal agencies that lawfully obtain genetic information keep it confidential and retain it in separate medical files.(25)
Federal agencies may disclose genetic information in six limited circumstances(26):
Recommendations Regarding Routine Uses Applicable to Forms Containing Applicants’ and Employees’ Medical and Genetic Information
The medical questionnaire may be disclosed, among other reasons, pursuant to routine uses in two Office of Personnel Management system of records notices: OPM GOVT-5, Recruiting, Examining, and Placement Records, and OPM GOVT-10, Employee Medical File System Records.(27) We believe that several of the routine uses included in these system of records notices would permit disclosure of protected medical and/or genetic information in circumstances beyond what the Rehabilitation Act and GINA permit. For example, Routine Use (e) in OPM GOVT-5 and Routine Use (r) in OPM GOVT-10 permit disclosure of records to federal agencies upon request regarding, among other things, agency retention decisions, suitability investigations, job classification, contract awards, or the issuance of a license or grant. Routine Use (d) in OPM GOVT-5 permits disclosure of records for similar purposes to “any source from which additional information is requested,” when necessary. Routine Use (k) in OPM GOVT-10 permits disclosure of records to the National Archives and Records Administration in records management inspections. Routine Use (j) in OPM GOVT-5 includes similar language, permitting disclosure as a routine use “[b]y the National Archives and Records Administration in records management inspections and its role as Archivist.” Routine Use (k) in OPM GOVT-5 and Routine Use (m) in OPM GOVT-10 permit disclosure for, among other things, statistics and studies, and acknowledge that data may, in some cases, be individually identifiable.(28) Routine Use (r) in OPM GOVT-5 and Routine Use (v) in OPM GOVT-10 permit disclosure of records to contractors, grantees, or volunteers performing or working on a contract, service, grant, cooperative agreement, or job for the federal government.(29) Routine Use (q) in OPM GOVT-10 permits disclosure of, among other things, information regarding individuals reasonably believed to have contracted an illness or been exposed to a health hazard while employed by the federal government. Routine Use (w) in OPM GOVT-10 permits disclosure of records on former Panama Canal Commission employees to the Republic of Panama for use in employment matters.
We recommend that TSA review and revise the routine uses applicable to the medical questionnaire and any other forms in this information collection, as well as other information collections that include protected medical and/or genetic information, as necessary to prevent any unintended legal conflicts. For example, TSA could exempt medical and genetic records, reports, or information from disclosure, where possible, or redact protected medical and/or genetic information from records prior to disclosure. In addition, with respect to Routine Use (r) in OPM GOVT-5 and Routine Use (v) in OPM GOVT-10 and related language on the medical questionnaire form, TSA could limit the disclosure of protected medical and/or genetic information to that which is relevant and necessary to perform job duties.
Thank you for the opportunity to provide these comments in response to this information collection. Please feel free to contact me with any questions or comments.
Senior Attorney Advisor
Office of Legal Counsel
U.S. Equal Employment Opportunity Commission
1 Revision of Agency Information Collection Under OMB Review: Transportation Security Officer Medical Questionnaire, 84 Fed. Reg. 11,552 (Mar. 27, 2019) (OMB Control No. 1652-0032).
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, as amended, 29 U.S.C. § 791; Titles I and V of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.; 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 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); 29 U.S.C. § 791(g) (incorporating, among other provisions, the anti-retaliation provision of the ADA into the Rehabilitation Act); 29 U.S.C. § 215(a)(3); 42 U.S.C. § 2000ff-6(f).
4 Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (June 30, 1978).
5 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).
6 See generally EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, 1995 WL 1789073, https://www.eeoc.gov/policy/docs/preemp.html (last modified July 6, 2000); EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, 2000 WL 33407181, https://www.eeoc.gov/policy/docs/guidance-inquiries.html (last modified Mar. 24, 2005).
7 42 U.S.C. § 12112(d)(2); 29 C.F.R. § 1630.13(a).
8 42 U.S.C. § 12112(d)(3); 29 C.F.R. § 1630.14(b).
9 42 U.S.C. § 12112(d)(4); 29 C.F.R. §§ 1630.13(b), 1630.14(c).
10 42 U.S.C. § 2000ff et seq.; 29 C.F.R. pt. 1635.
11 42 U.S.C. § 2000ff(4); 29 C.F.R. § 1635.3(c).
12 42 U.S.C. § 2000ff-1(b); 29 C.F.R. §1635.8.
13 83 Fed. Reg. 62,879, 62,879 (Dec. 6, 2018).
14 See Information Collection Supporting Statement, Transportation Security Officer (TSO) Medical Questionnaire, OMB No. 1652-0032, page 2.
15 EEOC, Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008 Question 13, https://www.eeoc.gov/laws/regulations/gina-background.cfm (last visited Mar. 4, 2019) (noting that employers must instruct their health care providers not to collect genetic information during employment-related medical examinations).
16 29 C.F.R. § 1635.8(b)(1)(i)(A) (noting that receipt of genetic information in response to a lawful request for medical information generally will not be considered inadvertent unless the employer instructs the individual or health care provider not to provide genetic information). Employers are not required to provide such an instruction if their request for medical information is not “likely to result in a covered entity obtaining genetic information.” 29 C.F.R. § 1635.8(b)(1)(i)(C).
17 29 C.F.R. § 1635.8(b)(1)(i)(B) (providing sample language that employers may use).
18 See TSA Form 1130A-1, Transportation Security Officer Medical Questionnaire 1 (2019); id. at 10 (noting that TSA’s primary medical contractor, Comprehensive Health Services, will receive applicants’ medical examination information and “is the sole authority for rendering TSO medical qualification determinations”).
19 See id. at 1 (recommending that applicants “[c]onsider bringing medical records/documentation regarding any chronic diseases or medical conditions, such as recent lab reports or stress test results to [their] medical exam appointment”).
20 See 42 U.S.C. § 2000ff(4); 29 C.F.R. § 1635.3(c) (defining “genetic information”).
21 See 29 C.F.R. § 1635.8(d) (“A covered entity must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.”).
22 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(4)(i).
23 29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(4)(i).
24 29 C.F.R. pt. 1630, App. § 1630.14(b).
25 42 U.S.C. § 2000ff-5; 29 C.F.R. § 1635.9.
27 See TSA Form 1130A-1, Transportation Security Officer Medical Questionnaire 11 (Privacy Act Statement).
28 See OPM GOVT-5, Routine Use (k) (noting that “[w]hile published statistics and studies do not contain individual identifiers, in some instances the selection of elements of data included in the study may be structured in such a way as to make the data individually identifiable by inference”). OPM GOVT-10, Routine Use (m) includes almost identical language.
29 The medical questionnaire also explicitly permits disclosure to such individuals. See supra note 27.
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