C.F.R. » Title 28 » CHAPTER I—DEPARTMENT OF JUSTICE › PART 42—NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND PROCEDURES › Subpart G—Nondiscrimination Based on Handicap in Federally Assisted Programs or Activities—Implementation of Section 504 of the Rehabilitation Act of 1973

28 C.F.R. § 42.513

Preemployment inquiries

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(a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination and may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped person or as to the nature or 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 pursuant to § 42.505(a) of this subpart, when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its Federally assisted program or activity pursuant to § 42.505(b) of this subpart, or when a recipient is taking affirmative action pursuant to section 503 of the Act, the recipient may invite applicants for employment to indicate whether and to what extent they are handicapped: Provided, That:

(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 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 or employee to any adverse treatment, and that it will be used only in accordance with this part.

(c) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty: Provided, That:

(1) All entering employees are subjected to such an examination regardless of handicap, and

(2) The results of such an examination are used only in accordance with the requirements of this subpart.

(d) The applicant's medical record shall be collected and maintained on separate forms and kept confidential, except that the following persons may be informed:

(1) Supervisors and managers regarding restrictions on the work of handicapped persons and necessary accommodations;

(2) First aid and safety personnel if the condition might require emergency treatment; and

(3) Government officials investigating compliance with the Act upon request for relevant information.

Notes of Decisions
Cited in 2 cases, 1998–2011 · leading case: Downs v. Massachusetts Bay Transp. Auth., 13 F. Supp. 2d 130 (D. Mass. 1998).
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Downs v. Massachusetts Bay Transp. Auth., 13 F. Supp. 2d 130 (D. Mass. 1998). · cites it 4× “§ 12112 (d)(3); 28 C.F.R. § 42.513 (e). Downs also alleges he is entitled to summary judgment as to the MBTA having violated the ADA by failing to maintain the confidentiality of his medical records.”
Lee v. City of Columbus, Ohio, 636 F.3d 245 (6th Cir. 2011). “As a preliminary matter, we note that the Rehabilitation Act addresses the confidentiality of medical records only in the limited context of pre-employment examinations.”
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