Under new guidance issued by the New York City Human Rights Commission, criminal background checks must now be the very last step in the hiring process.
As the COVID-19 pandemic continues and we adjust to our new normal, workplaces are opening back up with varying timelines and restrictions. Some companies are planning to bring back furloughed or laid-off employees under state and county guidelines. Due to the amount of time and the severity of the health crisis, it is a best practice to screen new and returning employees through background checks, drug screens, and COVID-19 screens.
Of course, when and how screening is conducted will depend on many factors. There are legal, contractual, health, and safety considerations to think about as you plan to bring back furloughed or laid-off team members.
In a recent webinar, experts Elizabeth McLean, General Counsel, and Max Wesman, Chief Operating Officer, discuss what “return to work” screening looks like.
Recommendations for Back to Work Rescreening During COVID-19
Rescreening is a business decision that depends on the specifics of your business. It may depend on your industry, job positions, where your offices are located, and how your business is adapting to new business operations. There is no one-size-fits-all solution, but many employers are choosing to move forward with:
- Criminal and watchlist searches: Most employees have been out of office for months, which is long enough for new criminal offenses to be filed with courts and law enforcement agencies. Consider running a national criminal background check and watchlist searches to make sure employees have not engaged in criminal activity while outside of the office. Failing to screen workers who have committed crimes in the past few months could be viewed as negligent by the plaintiffs bar, so you want to make sure you’re covering yourself.
- Drug testing: Consider if the time elapsed between your workplace closing and returning to work warrants drug testing. It may make sense if your state’s stay-at-home orders have extended weeks or months. And if you’re in a regulated industry, make sure you check into specific drug screening requirements announced by your regulator.
- COVID-19 testing: COVID-19 testing and screening options are being developed to help ensure a safe work environment, and some are already available to employers. One is an antibody and active infection home test kit with a 24-hour turnaround time. This may be the best way to identify employees with an active infection, but it’s costly and may require regular retesting to catch any potential future infections.
- Health assessments: Some companies are utilizing remote or onsite health assessments. These include employee self-assessment questionnaires, or symptom assessments by remote or onsite healthcare professionals. There are also new innovations coming out, including an onsite touch screen assessment that’s able to record the employee’s temperature. This may be more cost effective than frequent COVID-19 testing, but may not identify all infected individuals.
Best Practices to Mitigate Legal Risk & Ensure Compliance
If you move forward with background check rescreening, be sure to follow the law. There are various legal and compliance challenges that may exist in return to work scenarios. You will need to comply with federal, state, and local requirements related to data privacy, employment screening, and nondiscrimination guidelines.
1. Administer consistent screening processes
The way you administer return to work background checks and COVID-19 tests can create or mitigate allegations of discrimination under the U.S. Equal Employment Opportunity Commission (EEOC). It’s generally important to be consistent in the way you administer screening processes, though you may have some leniency for workers protected under the Americans with Disabilities Act (ADA). Review the EEOC guidance and consult your own legal counsel for more information around how to avoid running afoul of ADA and Title VII Discrimination law.
2. Provide appropriate notice to California employees
The California Consumer Privacy Act (CCPA) requires California employers to give California employees notice about what kind of personal information the employer maintains and how it’s used. If you’re planning to take temperatures or collect other health information, employees need to be advised of the collection and that the results will be maintained for work eligibility purposes. That notice must be given before or at the time the employer collects the personal information.
3. Follow industry regulations
You’ll need to think about any specific industry regulations that apply to COVID-19 screens, drug screens, and background checks in general. If you plan to perform these checks on returning employees, you’ll need to ensure your screens include all industry-required searches with the appropriate lookback scope. You may also review the FDA’s guidance as it relates to COVID-19 and returning to work.
4. Review client contracts
If your client contracts require you to screen your employees in a particular way, you’ll want to do your best to continue complying with those contract terms. If it’s not possible or preferable for you, speak with your attorney about whether you have a force majeure option out of that obligation.
5. Continue to follow FCRA requirements
The Fair Credit Reporting Act (FCRA), the federal law regulating your procurement and use of background checks, still applies. You must continue to get consent for background checks, and you must continue to follow the adverse action process. Ban-the-box laws also still apply in jurisdictions where they have them.
6. Stay on top of new legislation
Both parties have presented proposed bills that would impose data privacy obligations on employers who collect and use COVID-19 medical information. The Public Health Emergency Privacy Act is focused on preventing parties from using the medical information for purposes unrelated to COVID-19 and requiring them to delete the information within 60 days of the public health emergency ending. The COVID-19 Consumer Data Protection Act would require that all companies get consent from employees before collecting, processing, and transferring health information. If passed, there will likely be a quick shift from enactment to the law becoming effective, so it’s a good idea to stay on top of this issue.
7. Safeguard health data
Many businesses are going to be collecting health data as part of their return to work programs. Make sure you keep that information stored securely in a medical file so as not to run the risk of data breach.
8. Follow the industry standard
If your competitors and affiliates are performing COVID-19 tests, drug screens, and criminal background checks, you should consider following suit. Otherwise, the plaintiffs bar may allege that you fell below industry standard in maintaining a safe work environment. This can help them establish your liability. Personal injury and wrongful death suits have already been filed against some employers who had few protections in place.
Safeguard Your Employees & Customers to Proactively Mitigate Your Risk
Employee health and wellness is top of mind for many HR teams right now, as it should be. When you reopen your workplace, follow CDC and OSHA guidance for workplace safety, temperature checks, and health checks. Some jurisdictions may require very specific reopening measures, including face masks and social distancing mechanisms. Check with your counsel to ensure you’re reopening compliantly.
Screening adds another layer of protection for your employees and customers, and should not be overlooked in your return to work plan. A proactive approach is the best way to safeguard your employees and customers, and mitigate risk to your business.
Want to learn more? Watch our on-demand webinar, Return to Work: Screening Considerations for Bringing Back Your Team.
The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.