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 Process
March 27, 2014
Submitted via electronic mail
Department of State Desk Officer
Office of Information and Regulatory Affairs
Office of Management and Budget
Re: DS- 3057 – Medical Clearance Update, OMB Control Number 1405-0131; DS-1843 and DS-1622 - Medical History and Examination for Foreign Service, OMB Control Number 1405-0068
To Whom It May Concern:
The Equal Employment Opportunity Commission (EEOC) submits these comments in response to the Department of State’s request for comments on the two information collections cited above, published in the Federal Register on February 25, 2014 (79 FR 10594). 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 forms. 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.
EEOC’s Previous Comments Regarding State’s Medical Clearance Process
The EEOC submitted a comment on December 23, 2013, in response to State’s 60-Day Notice of Proposed Information Collection on Form DS-3057. When the 30-Day Notice was subsequently published on February 25, 2014, we contacted State to inform them that no mention was made of our comment. State informed us that our comment, submitted through regulations.gov, had not been received by the appropriate people for reasons it would investigate. State agreed to review and consider the comment during the 30-day period. To ensure that our original comment is part of the official file for OMB’s review of DS-3057, we have attached it to this letter. It is also available on our public website. See EEOC’s December 23, 2013 letter, GINA and the Rehabilitation Act: State Department Medical Clearance Update at http://www.eeoc.gov/eeoc/foia/letters/2013/gina_rehabilitation_act_medical_clearance_update_12_23.html
The EEOC’s December 23 comment on DS-3057 explains that we previously shared our concerns about State’s medical clearance process and forms used in that process in a public comment in October 2011. The October 2011 comment focused specifically on DS-1843 and DS-1622. We have attached it to this letter. It is also available on our public website. See EEOC’s October 11, 2011 letter, GINA and Rehabilitation Act: State Department Forms – Medical History and Examination of Foreign Service 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. Although the forms submitted by State for clearance in February 2014 do include certain changes, such as citing to the requirements of GINA and warning doctors involved in the medical clearance process not to request genetic information, the forms do not include the language we suggested in our October 2011 comment. As noted in our December 23, 2013 comment concerning DS-3057, the medical clearance update form raises the same problems we outlined in detail in the attached October 2011 comment.
We therefore take this opportunity to resubmit our October 2011 comment and request that State revise DS-3057, DS-1843, and DS-1622 to avoid conflicts with GINA.
The explanation for our requested changes is spelled out in detail in the October 2011 letter. Here, we merely reiterate our suggested revisions.
DS-3057 should be revised so that the last sentence of the Privacy Act Notice which states “[f]ailure to provide this information may result in denial of medical clearance and affect your Foreign Service eligibility,” is deleted and replaced with information outlined under the Suggested Revisions to DS-1843 and DS-1843P 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.
The disclosure notice on DS-1843 states “[p]roviding this information is voluntary. However, failure to provide the information requested on this form may result in denial of a medical clearance. Also, if you are an applicant to the Foreign Service, your failure to provide the information requested on this form may affect your foreign service eligibility.” Although it appears that State made an effort to distinguish between information that must be provided by an applicant/employee and information that must be provided by family members, these instructions still imply that family medical history, or the refusal to provide it, will be used as a basis for medical clearance decisions. This implication is problematic under GINA, for the reasons spelled out in detail in the attached October 2011 comment. We therefore reiterate our suggestion that the disclosure notice in DS-1843 be replaced with the information outlined under Suggested Revisions to DS-1843 and DS-1843P of the October 2011 comment (Notice to Employees and Notice to Family Members).
Similarly, the disclosure notice on DS-1622 states “[p]roviding this information is voluntary. However, failure to provide the information requested on this form may result in denial of a medical clearance.” This information should be replaced by the information outlined under Suggested Revisions for DS-1622 and DS-1622P in the October 2011 comment (Notice to Family Members).
The Rehabilitation Act
We further emphasize that State may not use any information from these forms 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.
Peggy R. Mastroianni
This page was last modified on May 8, 2014.
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