(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct preemployment medical examinations or make
preemployment inquiry of an applicant for employment or training as to
whether the applicant is a handicapped person or as to the nature or the
severity of a handicap. A recipient may, however, make preemployment
inquiry into an applicant's ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination, when a recipient is taking voluntary
action to overcome the effects of conditions that resulted in limited
paticipation in its federally-assisted program or activity, or when a
recipient is taking affirmative action pursuant to section 503 of the
Act, the recipient may invite applicants for employment or training to
indicate whether and to what extent they are handicapped if:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts.
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph (d) of this section, that refusal to provide it
will not subject the applicant, employee or participant to any adverse
treatment, and that it will be used only in accordance with this part.
(c) An employer who routinely requires medical examinations as part
of the employment selection process must demonstrate that each of the
requirements of this subsection are met:
(1) The medical examination shall be performed by a physician
qualified to make functional assessments of individuals in a form which
will express residual capacity for work or training. Such an assessment
does not require clinical determinations of disease or disability, but
shall provide selecting or referring officials sufficient information
regarding any functional limitations relevant to proper job placement or
referral to appropriate training programs. Factors which may be assessed
may include, for example, use of limbs and extremities, mobility and
posture, endurance and energy expenditure, ability to withstand various
working conditions and environments, use of senses and mental capacity;
(2) The results of the medical examination shall be specific and
objective so as to be susceptible to review by independent medical
evaluators and shall be transmitted to the applicant or employee at the
same time as the employing official;
(3) The results of the medical examination shall not be used to
screen out qualified applicants and employees but to determine proper
placement and reasonable accommodation. The employing official using
physical or mental information obtained pursuant to this section should
be familiar with physical or mental activities involved in performing
the job, and the working conditions and environment in which it is
carried out. If the applicant is being considered for a variety of jobs
having different requirements or skills, the employing official should
make a functional assessment of the physical or mental demands of the
jobs in order to match the applicant with the most suitable vacancy;
(4) All of potential employees for the jobs are subjected to the
medical examination;
(5) The procedures for using medical examinations or the medical
information shall be constructed in such a manner that:
(i) A conditional job offer was made or the individual was
conditionally placed in a job pool or conditionally placed on an
eligibility list prior to the medical examination being performed; or
(ii) The results of the medical examination were considered by the
employing official only after a conditional decision to make a job offer
or the individual had been placed conditionally in a job pool or
conditionally placed on an eligibility list; that is the medical results
were the last factor evaluated by the employing officials before a final
decision to make an offer of employment was made.
(6) Unless a conditional job offer is made prior to the medical
examination, all potential employees for the job shall be informed at
the time of the medical examination that:
(i) The results of the medical examination are the last factor
evaluated by the employing official before a final decision to make an
offer of employment is made, and
(ii) The medical examination results shall be transmitted to the
employing official and the applicant only after a conditional decision
to make a job offer has been made.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except that:
(1) Employing officials may obtain the information after making a
conditional decision to make a job offer to the applicant or the
applicant was placed conditionally in a job pool or placed conditionally
on an eligibility list.
(2) Supervisors and managers may be informed regarding restricions
on the work or duties of qualified handicapped persons and regarding
necessary accommodations;
(3) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(4) Government officials investigating compliance with the Act shall
be provided information upon request.
