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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 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.

Rehabilitation Act/GINA: Confidentiality of Medical/Genetic Information

December 12, 2012


Department of Defense
Office of the Secretary, DoD/Joint Staff

Re: FR Docket 2012-28240, DMDC 02 DOD, Request for Comments Regarding Alteration to DEERS System of Records

To Whom It May Concern:

The U.S. Equal Employment Opportunity Commission (EEOC or the Commission) submits this comment in response to the Department of Defense's (DOD's) notice of its proposal to alter a system of records, "Defense Enrollment Eligibility Recording System (DEERS)," published in the Federal Register on November 21, 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)

DEERS contains records of former and current DOD civilian employees and, to some extent, their family members, including "disability documentation, wounded, ill and injured identification information; other health information, i.e., tumor/reportable disease registry; . . . blood test results; [and] Deoxyribonecliic Acid (DNA)." There are twenty-one "routine uses" of records maintained in the system by which DOD may disclose such records or information outside of DOD. As explained below, the scope of the routine uses in DEERS 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)

We believe that DEERS would permit disclosure of medical information beyond what is legally
permissible under the Rehabilitation Act. Accordingly, we recommend that DOD review and revise the disclosure provisions of DEERS 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. It thus appears that DEERS is likely to contain genetic information, as the categories of records in the system include unspecified health information about employees and their family members, as well as blood test results (some of which likely include genetic information) and DNA of employees (and possibly family members). GINA would prohibit disclosure of such genetic information except according to one of the exceptions described above. We therefore recommend that DOD review the disclosure provisions in DEERS 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.


Carol R. Miaskoff
Assistant Legal Counsel


(1) See Privacy Act of 1974; System of Records, 77 Fed. Reg. 69807 (Nov. 21, 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) 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) (2012).

(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; Regulations Under the Genetic Information Nondiscrimination Act of 2008; Final Rule, 29 C.F.R. § 1635.9 (2012).

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