2H03 Disability-Related Inquiries, Medical Exams, and Confidentiality of Disability Information

a. Disability-Related Questions and Medical Examinations. Aside from disability inquiries undertaken as a matter of affirmative action pursuant to federal, state, or local law, such as the invitation for voluntary self-identification, Section 503 prohibits contractors from asking applicants disability-related questions or questions that are likely to elicit information about a disability prior to a conditional offer of employment. The law also prohibits contractors from conducting or requiring medical examinations of applicants until after a conditional job offer is made. Once the contractor makes a conditional job offer, the contractor may ask disability-related questions and require medical examinations, regardless of whether they are related to the job, as long as this is done for all entering employees in the same job. COs must determine whether the contractor improperly made disability-related inquiries or inquiries likely to elicit information about a disability on the job application itself or during the selection process, and whether the contractor administered medical examinations prematurely. On-site, a CO must obtain a copy of the application and forms related to the application process. COs should also ask whether the application process includes medical exams, at what stage the exams are used, and how the exams are used.

Mandatory disability-related inquires and medical examinations of employees, such as return to work exams and periodic physicals, are permissible only when, and to the extent that, they are job-related and consistent with business necessity. The CO may ask the contractor whether, under what circumstances, and how it uses exams to determine whether an employee is fit for duty to return to work. The contractor may not use information obtained as a result of such a lawful inquiry or exam in a way that discriminates on the basis of disability. Drug tests for the illegal use of drugs are not medical exams.

b. Confidentiality Requirement. The contractor must keep any information about disability (other than completed voluntary self-identification forms) or information related to medical exams in a separate, confidential medical file and not with personnel or data analysis files.120 However, government officials investigating compliance with EEO laws may have access; the contractor may inform supervisors and managers of necessary restrictions or needed reasonable accommodations, and the contractor may inform first aid and safety personnel of any needs. COs must make an assessment of acceptability of the contractor’s system for maintaining confidentiality of medical information, including inspecting where the records are kept, who has access to the records and why, and measures that ensure confidentiality of the records.

120. Self-identification information must be kept in a separate data analysis file. 41 CFR 60-741.42(e).