EEOC Informal Discussion Letter

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.

Rehabilitation Act & GINA: The Use and Disclosure of Health-Related Information

December 4, 2013

Transmitted VIA
Regulations.gov

Director, Regulations Management (02REG)
Department of Veterans Affairs
810 Vermont Avenue, NW, Room 1068
Washington, D.C. 20420

Re: FR Docket, VA-2013-VACO-0001, Notice of a New System of Records, VA Mobile Application Environment (MAE)-VA

To Whom It May Concern:

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) submits this comment in response to the Department of Veterans Affairs' (VA) notice that it is "establishing a new system of records titled 'VA Mobile Application Environment (MAE)-VA' (173VA00OP2)," published in the Federal Register on November 6, 2013.⁽¹⁾ The EEOC offers these comments as the 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 the EEOC also prohibit retaliation for filing a discrimination complaint, participating in a discrimination proceeding, or otherwise opposing discrimination.⁽²⁾

The MAE will contain records of, among other information, VA employees' "health-related information" such as "medications, health-related history, [and] health assessments." ⁽³⁾ This information may be used for "personnel management and evaluation; employee ratings and performance evaluations; and employee disciplinary or other adverse action, including discharge. . . ."⁽⁴⁾

Due to the sensitive nature of such information, the Privacy Act of 1974, 5 U.S.C. § 552a, regulates how federal agencies must maintain, use, and disseminate covered records. As relevant here, the Act prohibits an agency from disclosing an individual's records absent his express written consent, unless the disclosure falls within one of the Act's twelve exceptions.⁽⁵⁾ Under one of the Act's exceptions, an agency is permitted to disclose an individual's records for a "routine use."⁽⁶⁾ The VA lists twenty-one routine uses for the proposed MAE system.⁽⁷⁾

As discussed below, the Commission recommends that the VA review and revise the MAE in two respects. First, the VA should ensure that its use of employees' health-related information to make employment decisions is consistent with the requirements of Section 501 of the Rehabilitation Act of 1973, as amended (the Rehabilitation Act) and the Genetic Information Nondiscrimination Act of 2008 (GINA). Second, the VA should ensure that its disclosure of employees' health-related information is consistent with these laws.

The Use of Health-Related Information to Make Employment Decisions

The Rehabilitation Act

The Rehabilitation Act prohibits federal agencies from discriminating against qualified applicants or employees on the basis of "disability."⁽⁸⁾ The Rehabilitation Act adopts the standards set forth in titles I and V of the Americans with Disabilities Act, as amended (ADA).⁽⁹⁾ A disability under the ADA is a physical or mental impairment that substantially limits one or more of an individual's major life activities, a record of such an impairment, or being regarded as having such an impairment.⁽¹⁰⁾ As a result of the ADA Amendments Act of 2008, the definition of "disability" is now quite broad. For example, the term "major life activities" now includes major bodily functions (such as functions of the immune system, normal cell growth, brain, and neurological functions).⁽¹¹⁾ Also, an impairment need not prevent, or severely or significantly restrict, performance of a major life activity to be considered substantially limiting,⁽¹²⁾ and the determination of whether someone has a disability is made without regard to the ameliorative effects of mitigating measures (e.g., medications or assistive devices) used to reduce or eliminate an impairment's effects.⁽¹³⁾ An employer regards an individual as having a disability if it takes some prohibited action (e.g., fails to hire or terminates the person) based on an impairment that is not transitory (lasting or expected to last for six months or less) and minor.⁽¹⁴⁾

The MAE will contain VA employees' health-related information such as medications, health-related history, and health assessments. The Rehabilitation Act would prohibit the VA from using such information to discriminate against VA employees on the basis of disability. This means, for example, that the Rehabilitation Act would prohibit the VA from discharging an employee on the basis of his health-related history information or health-assessment information if he could perform the essential functions of the job and would not pose a direct threat (i.e., a significant risk of substantial harm to the individual or others) due to a medical condition.⁽¹⁵⁾ Additionally, if an employee has an actual physical or mental impairment that substantially limits one or more major life activities – or a record of such an impairment – and requests an adjustment or change at work for a reason related to a medical condition or his health-related history, the VA would be required to provide a reasonable accommodation unless to do so would pose an undue hardship.⁽¹⁶⁾

Thus, as the MAE will contain VA employees' health-related information, and the information may be used for personnel management and adverse actions, including discharge, the Commission recommends that the VA ensure that its use of VA employees' health-related information is consistent with the Rehabilitation Act's requirements summarized above.

GINA

GINA prohibits federal agencies from using the genetic information of applicants or employees to make employment decisions; from requesting, requiring, or purchasing genetic information of applicants or employees, except in very narrow circumstances; and from disclosing the genetic information of applicants and employees, except where specifically authorized.⁽¹⁷⁾ The statute defines genetic information to include not only genetic tests of individuals and their family members, but also the manifestation of a disease or disorder in family members, i.e., family medical history.⁽¹⁸⁾

As noted above, the MAE will contain VA employees' health-related history and health assessments. It is likely that such information will include genetic information such as family medical history. GINA would prohibit the VA from using VA employees' genetic information to make employment decisions. GINA does not provide a defense for the use of genetic information. Thus, the Commission recommends that the VA ensure that its use of VA employees' health-related information in the MAE is consistent with GINA's requirements.

The Disclosure of Health-Related Information

The Rehabilitation Act

The Rehabilitation Act requires that federal agencies that lawfully obtain medical information from applicants and employees, collect and maintain such information on separate forms and in separate medical files and treat it as a "confidential medical record."⁽¹⁹⁾ Agencies may disclose an applicant's or employee's medical information only in limited circumstances.⁽²⁰⁾ Specifically, agencies may share medical information with supervisors and managers who need to know about an employee's work restrictions and necessary accommodations; first aid and safety personnel if an employee's disability might require emergency treatment or special procedures; and government officials investigating compliance with the Rehabilitation Act.⁽²¹⁾ Additionally, the Commission has concluded that the Rehabilitation Act permits disclosure of medical information for workers' compensation and insurance purposes.⁽²²⁾ Moreover, although not specifically related to confidentiality, a provision in EEOC's ADA regulations allows employers to assert as a defense that a particular action is "required or necessitated by another Federal law or regulation. . . ."⁽²³⁾

The Commission believes that some of the situations in which the VA would permit the disclosure of VA employees' health-related information under its routine uses may exceed what is legally permissible under the Rehabilitation Act or what is appropriate as a routine use of such information.⁽²⁴⁾ Accordingly, we recommend that the VA review and revise its disclosure provisions in the MAE as necessary to prevent any unintended legal conflicts with the Rehabilitation Act.

GINA

GINA requires that federal agencies that lawfully⁽²⁵⁾obtain genetic information about applicants, employees, and former employees maintain the information in separate medical files and treat it as confidential.⁽²⁶⁾ As noted above, federal agencies may disclose genetic information only in very limited circumstances. Specifically, the information may be disclosed to the employee or to the employee's family member about whom the information pertains, upon receipt of the employee's or the employee's family member'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.⁽²⁷⁾

As noted above, it appears that the MAE will likely contain VA employees' genetic information. GINA would prohibit the disclosure of such information except according to one of the aforementioned exceptions. Therefore, the Commission recommends that the VA review and revise the disclosure provisions in the MAE as necessary to prevent any unintended legal conflicts with GINA.

Thank you for the opportunity to provide these comments. Should you wish to discuss any of the issues raised in this letter in further detail, please feel free to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579 or Senior Attorney Advisor Tanisha Wilburn at (202) 663-4909.

Sincerely,
/s/

Peggy R. Mastroianni 
Legal Counsel

FOOTNOTES:

1 78 Fed. Reg. 66806.

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 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 78 Fed. Reg. at 66807. The notice states that the system will also contain the records of, among other individuals, "VA contractors [and] VA volunteers. . . ." Id. However, as the laws enforced by the EEOC prohibit only employment discrimination – not discrimination against "contractors" or "volunteers" – our recommendations extend only to the VA's use and disclosure of information in the MAE with respect to "employees."

3 Id.

5 5 U.S.C. § 552a(b).

6 Id. § 552a(b)(3).

7 78 Fed. Reg. at 66807-66809.

8 29 U.S.C. § 791 et seq.

9 See 29 U.S.C. § 791(g) (applying the standards under Title I of the Americans with Disabilities Act of 1990 to the Rehabilitation Act).

10 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g).

11 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(i)(1)(ii).

12 42 U.S.C. § 12102(4)(B); 29 C.F.R. § 1630.2(j)(1)(ii).

13 42 U.S.C. § 12102(4)(E); 29 C.F.R. § 1630.2(j)(vi).

14 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(l).

15 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r).

16 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.15(d); 29 C.F.R. pt. 1630 app. § 1630.15(d). For more information discussing federal agencies' responsibilities in providing reasonable accommodations to qualified applicants and employees, refer to U.S. Equal Emp't Opportunity Comm'n, EEOC Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (2000), http://www.eeoc.gov/policy/docs/accommodation_procedures.html. For general information about reasonable accommodation and undue hardship under the ADA, refer to U.S. Equal Emp't Opportunity Comm'n, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), http://www.eeoc.gov/policy/docs/accommodation.html.

17 See 42 U.S.C. §§ 2000ff-1(a)-(b); 2000ff-5.

18 See id. § 2000ff (4).

19 29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(1).

20 Id.

21 Id.

22 Id. pt. 1630 app. § 1630.14(b).

23 Id. § 1630.15(e).

24 The Commission notes that the VA stated in the notice that information that is protected by 38 U.S.C. § 7332, "e.g., medical treatment information related to drug abuse, alcoholism or alcohol abuse, sickle cell anemia or infection with the human immunodeficiency virus," "cannot be disclosed under a routine use unless there is also specific statutory authority permitting disclosure." 78 Fed. Reg. at 66807.

25 GINA allows employers to acquire genetic information in six very narrow circumstances, despite the general prohibition on acquisition. See 42 U.S.C. § 2000ff-1(b); 29 C.F.R. § 1635.8(b).

26 42 U.S.C § 2000ff-5(a); 29 C.F.R. § 1635.9(a).

27 42 U.S.C. § 2000ff-5(b); 29 C.F.R. § 1635.9(b).

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