(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.