Montana Administrative Register Notice 2-21-453 No. 11   06/09/2011    
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In the matter of the amendment of ARM 2.21.6608, 2.21.6613, 2.21.6615, and 2.21.6616 pertaining to employee records management









TO:  All Concerned Persons


1.  On July 8, 2011, at 11:00 a.m. the Department of Administration will hold a public hearing in Room 136 of the Mitchell Building, at 125 N. Roberts Street, Helena, Montana, to consider the proposed amendment of the above-stated rules.


2.  The Department of Administration will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact the Department of Administration no later than 5:00 p.m. on June 29, 2011, to advise us of the nature of the accommodation needed.  Please contact Lisa Coligan, Department of Administration, P.O. Box 200127, 125 N. Roberts Street, Helena, Montana 59620; telephone (406) 444-3854; fax (406) 444-0703; Montana Relay Service 711; or e-mail lcoligan@mt.gov.


3.  The rules proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


2.21.6608  DEFINITIONS  As used in this subchapter the following definitions apply:

(1) through (3) remain the same.

(4)  "Genetic information" means information about applicants' or employees' genetic tests, the genetic tests of their family members, and the manifestation of a disease or disorder in their family members, including information obtained orally or inadvertently (refer to [MAR Notice No. 2-21-448, New Rule I published in this issue]).  Genetic information does not include information about an individual's sex or age.  Records containing genetic information are listed in ARM 2.21.6613. 

(5) and (6) remain the same.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The proposed amendment to ARM 2.21.6608 clarifies the definition of genetic information.  Recently published federal Genetic Information Nondiscrimination Act (GINA) regulations, which employers are required to follow, state that genetic information includes information obtained orally or inadvertently.  The federal regulations restrict the use and collection of genetic information, including information that may be obtained orally, such as through a water cooler conversation, or, inadvertently, such as through an employee's response to a medical certification form.  If this amendment is not made, then employees may not know genetic information also includes information obtained orally or inadvertently.  The improper use or disclosure could subject the state to liability. 

The department deleted the reference to sex or age as not being genetic information because that subject matter is being covered in the proposed amendments to ARM 2.21.6613.



(1) through (1)(e) remain the same.

(2)  Examples of frequently used employee personnel records that may contain genetic information include Family and Medical Leave Act (FMLA) request forms, reasonable accommodation requests, medical certifications tests, medically fit for duty forms, and records relating to worker's compensation claims and employee participation in wellness programs. 

(3)  Genetic records do not include:

(a)  information about the sex or age or an individual or family members;

(b)  information about the race or ethnicity of an individual or family member that is not obtained from a genetic test;

(c)  information about an employee's disease that is already manifested or diagnosed;

(d)  routine tests such as blood count, cholesterol, or liver-function tests; and

(e)  analysis of infectious agents such as bacteria, viruses, and fungi.

(4) GINA prohibits the collection of genetic information, except in specific instances.  Refer to the FMLA (MOM #03-0309), Sick Leave (MOM #03-0310), Equal Employment Opportunity, Nondiscrimination, and Harassment Prevention (ARM, Title 2, chapter 21, subchapter 40), and Reasonable Accommodation [MAR Notice No. 2-21-446, New Rules I through XX published in this issue] policies for exceptions to obtaining genetic information. 


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The proposed amendments to ARM 2.21.6613 incorporate recent GINA regulations identifying those records that do not contain genetic information.  The changes to the GINA regulations were made because there was confusion regarding what specific records included genetic information and what records did not.  

The current rule does not provide the clarity of the recent GINA regulations.  The amendments will allow state employees and management to identify genetic information without confusion and unnecessary caution.

The reference to wellness programs is made because GINA specifically identifies wellness programs as an area where genetic information is sometimes requested or conveyed.  Given that the state does have wellness programs, it is important to identify this area as a potential source for genetic information.


2.21.6615  ACCESS TO EMPLOYEE PERSONNEL RECORDS  (1) through (3) remain the same.

(4)  As provided in the ADA and FMLA, access to medical information may not be disclosed except to:

(a)  the employee about whom the information pertains;

(a) through (d) remain the same, but are renumbered (b) through (e).

(5) through (10) remain the same.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The amendment to ARM 2.21.6615 clarifies the employee's right to access medical and genetic information.  Although (3) allows employees to access records, (4) does not.  The new wording is proposed to alleviate the confusion that has been caused by the lack of clarity.


2.21.6616  EMPLOYEE PERSONNEL RECORDS USE  (1) Nothing in this subchapter prohibits authorized users from relying on the content of employee personnel records as provided in this policy or in agency procedures when responding to requests for employment information from employers to which employees have applied for employment.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  The amendment to ARM 2.21.6616 is necessary to remove redundant language in the text.


4.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to Lisa Coligan, Department of Administration, P.O. Box 200127, Helena, Montana 59620; telephone (406) 444-3854; fax (406) 444-0703; or e-mail lcoligan@mt.gov, and must be received no later than 5:00 p.m., July 8, 2011.


5.  Lisa Coligan, Department of Administration, has been designated to preside over and conduct this hearing.


6.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this department.  Persons who wish to have their name added to the mailing list shall make a written request which includes the name and mailing address or e-mail address of the person to receive notices and specifies that the person wishes to receive notices regarding State Human Resources Division rulemaking actions.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.


7.  An electronic copy of this Proposal Notice is available through the department's web site at http://doa.mt.gov/administrativerules.mcpx.  The department strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that if a discrepancy exists between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the department works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.


8.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.



By:   /s/ Janet R. Kelly                                         By:    /s/ Michael P. Manion                

         Janet R. Kelly, Director                                       Michael P. Manion, Rule Reviewer

         Department of Administration                            Department of Administration



Certified to the Secretary of State May 31, 2011.


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