(A) The prohibition against unlawful employment practices set forth in Section 1-13-80 (a) through (d) includes the prohibition against conducting medical examinations and inquiries except as provided for in this section.

(B) Except as provided in subsection (C), a covered entity must not conduct a medical examination or make inquiries of a job applicant as to whether the applicant is an individual with a disability or as to the nature or severity of the disability. A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.

(C) A covered entity may require a medical examination after an offer of employment has been made to a job applicant and before the commencement of the employment duties of the applicant, and may condition an offer of employment on the results of the examination, if:

(1) all entering employees are subjected to the examination regardless of disability;

(2) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that:

(a) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(b) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment;

(c) government officials investigating compliance with this chapter must be provided relevant information on request; and

(3) the results of the examination are used only in accordance with this chapter.

(D) For purposes of this chapter, drug and alcohol exams, tests, or screens may not be considered a medical examination.

(E)(1) A covered entity may not require a medical examination and may not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity.

(2) A covered entity may conduct voluntary medical examinations including voluntary medical histories which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

(3) Information obtained under subsection (E)(2) regarding the medical condition or history of an employee is subject to the requirements of subsection (C)(2) and (3).

(F)(1) It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screens out or tends to screen out or otherwise denies a job or benefit to an individual with a disability has been shown to be job related and consistent with business necessity, and the performance cannot be accomplished by reasonable accommodation, as required under this title.

(2) The term "qualification standards" may include a requirement that an individual may not pose a direct threat to the safety of that individual or of other individuals in the workplace.

(3) This chapter may not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on of its activities by the corporation, association, educational institution, or society. Under this chapter, a religious organization may require that all applicants and employees conform to the religious tenets of the organization.

(4) If an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services pursuant to the requirements of the Americans with Disabilities Act of 1990, Public Law 101-336, and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign the individual to a job involving food handling.

Nothing in this chapter may be construed to preempt, modify, or amend a state, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others and which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the Secretary of Health and Human Services.

HISTORY: 1996 Act No. 426, Section 1.