Mont. Admin. R. 24.9.607 - PROHIBITED MEDICAL EXAMINATIONS AND INQUIRIES-EMPLOYMENT DISCRIMINATION BASED ON DISABILITY
(1) An employer,
agent of an employer, employment agency or labor organization shall not require
medical examinations or make inquiries of employees for the purposes of
determining whether an employee has a physical or mental disability or to
determine the nature or severity of a disability unless the examination or
inquiry is shown to be job-related and consistent with business
necessity.
(2) Use of an employment
application form or process which requires a medical examination or makes an
inquiry of a job applicant for the purpose of determining whether a person has
a physical or mental disability or to determine the nature or severity of a
physical or mental disability prior to an offer of employment constitutes a
violation of
49-2-303(1)
(c), MCA and is evidence of a violation of
49-2-303(1)
(a), MCA unless the form or process complies
with the requirements of this rule.
(3) An employer, agent of an employer,
employment agency or labor organization may make pre-employment inquiries into
the ability of an applicant to perform job-related functions.
(4) An employer, agent of an employer,
employment agency or labor organization may require a medical examination of a
person after an offer of employment has been made and prior to the commencement
of the employment duties and may condition the offer of employment on the
results of the examination if:
(a) all
entering employees or union members in the same job category are subjected to
the same examination regardless of disability;
(b) information obtained regarding the
medical condition or history of a person is treated as a confidential medical
record; and
(c) information
obtained is collected and maintained in accordance with the requirements of the
Americans with Disabilities Act (ADA) where the employer, employment agency or
labor organization is subject to ADA requirements.
(5) An employer, agent of an employer, or
labor organization may conduct voluntary medical examinations, including
voluntary medical histories, that are part of a bona fide employee or union
health program. Information obtained pursuant to a bona fide employee or union
health program is a confidential medical record and subject to the same
confidentiality requirements and restrictions on disclosure stated in
(4).
(6) An employer, after a
conditional offer of employment to a prospective employee, may inquire whether
the prospective employee is certified or eligible to be certified as
vocationally disabled for the purposes of the subsequent injury fund, pursuant
to Title 39, chapter 71, part 9 of the Montana Workers' Compensation
Act.
Notes
49-2-204 and 49-3-106, MCA; IMP, 49-2-303, 49-3-201, and 49-3-202, MCA;
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