This post is part of our Blog Symposium “Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace.” Background on the symposium and links to other blog posts are here.
In our recent law review article, published by the University of Pennsylvania Law Review, my co-authors and I explore exactly what kinds of player health data the NFL and its Clubs can lawfully obtain from NFL hopefuls, as well as from current players. While the Clubs and the NFL have strong interests in accessing all kinds of information about players, current federal employment laws—mainly the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act—limit the collection of employee health data. Significantly, these statutes not only restrict how an employer can use its employees’ health data. They also restrict the ability of the employer to even ask. Among the major takeaways of our paper was that, via National Football Scouting, the NFL and its Clubs may be violating these laws with the interviews and medical examinations that take place during the National Scouting Combine. Our article focused primarily on evaluative technologies: things like physicals, athletic drills, wearables, ingestibles, and genetic tests. But what about when the source of the player health data is not a technique or technology but rather simply a medical record? In this blog post, I take a closer look at how the ADA and GINA apply to requests for medical records.
Medical Waivers at the Combine
As explored in-depth in a recent installment of this blog symposium, prospective players are particularly vulnerable because they are not yet members of the NFL Players Association (NFLPA), and thus cannot reap the benefits of the collective bargaining agreements it negotiates. The inferior bargaining position of aspiring players is particularly apparent considering the medical waivers they sign to even participate in the Combine. One waiver authorizes a mind-bogglingly long list of parties—including health care providers, physicians, mental health professionals, hospitals, schools, student health services, and former trainers and teams, even at the amateur level—to release and to discuss the players’ medical records with an equally long list of potential recipients—including National Football Scouting, the NFL and all its Clubs, their representatives, agents, medical staff, team physicians, and trainers, in addition to third-party physicians. The player consents to share:
My entire health or medical record and Health Information about me relating to any injury, sickness, disease, mental health condition, physical condition, medical history, medical or clinical status, diagnosis, treatment or prognosis from any source, including without limitation all written and/or electronic information or data, clinical notes, progress notes, discharge summaries, lab results, pathology reports, operative reports, consultations, physicals, physicians’ records, athletic trainers’ records, diagnoses, findings, treatments, history and prognoses, test results, laboratory reports, x-rays, MRI, and/or imaging results, outpatient notes, physical therapy records, occupational therapy records, prescriptions, and any and all other information pertaining to my past, present, or future medical condition, diagnosis, treatment, history, and prognosis.
It is hard to imagine a more comprehensive medical waiver. A second and similarly exhaustive medical waiver signed by Combine participants gives National Football Scouting, the NFL, its Clubs, and their affiliates permission to release and to disclose medical records, including protected health information, and authorizes even more parties to receive and use that health data—including the NFLPA and a number of third parties. Both waivers limit the use of the medical records to actual or potential employment as NFL players. Yet is it legal for employers to have extensive pre-employment access to their prospective employee’s medical records? Unfortunately for National Football Scouting, the NFL, and the Clubs, in the United States, the answer is no.
Lawfully Accessing Employee Medical Records
As we discuss at length in our article, both the ADA and GINA restrict the kind of information employers can obtain from job applicants. Pre-employment, the ADA prohibits employers from conducting medical exams or inquiring whether applicants have disabilities. All employers can lawfully do is ask applicants whether they can perform job-related functions, like lifting or driving. However, once an offer is on the table, the employer can condition employment on the results of a medical exam, as long as the exams are universally required, their results are kept confidential, and the employer doesn’t use the results to discriminate on the basis of disability. GINA prohibits employers from requesting, requiring, and purchasing genetic information—which includes family medical history—at all stages of employment. At present, these provisions apply to professional sports as they would to any other job. So what does this mean for those extensive medical waivers that players sign to participate in the Combine? It means they could well violate both the ADA and GINA.
Although they do not explicitly state it, the restrictions on medical exams and requests for genetic information also cover medical records. To prohibit employers from conducting medical exams and requesting genetic tests only to allow employers to obtain that selfsame information via medical records would provide an end-run around these important legal protections. Employers can therefore only ask applicants to share their medical records after extending an offer. In fact, employers can go as far as conditioning the offer on receiving an applicant’s medical records. Yet even then GINA requires genetic information to be redacted.
Our paper identifies the National Scouting Combine as the ultimate pre-employment medical exam. However, it doesn’t end there. The staggeringly broad medical waivers are also part of the potential problem. Under the ADA, employers—including the NFL and its Clubs—cannot ask for medical information until making an offer, which is clearly not the case at the Combine. Moreover, those exhaustive requests for health data, as currently written, would also include genetic test results and family medical history. By supplying the Clubs and the NFL with pre-employment medical records that contain genetic information, National Football Scouting is enabling the NFL and the Clubs to obtain the very player health data the ADA and GINA attempt to regulate. Consequently, the analysis in our recent article applies with equal force to medical records.