By: Christine Cunneen
We are experiencing extraordinary times. Never in our lifetimes have we seen the devastating effects of a worldwide pandemic, and I can only hope we never see them again. The increasing unemployment rate has been of particular concern, and one that is prompting the re-opening of our economy. While we are all anxious to get employees working again to provide for themselves and their families, recalling employees will not be like the flipping of a switch. It will be a slow process that is dependent upon many factors, including varying state laws and regulations, social distancing guidelines, and the specific industry involved. For employers, it may also raise concerns about their employees’ activities, having them question if they need to conduct new background screenings before bringing employees back and if employees should be drug tested.
More employees have been furloughed during this time than ever before. As a furlough is an unpaid leave, employees who have been furloughed are not terminated. They were simply not paid, while remaining in employment. Generally, this would not warrant a new background screening or drug screening. However, an employer’s contractual obligations are the guiding principles under these circumstances. According to SHRM, “Employees who are laid off will be maintained on a recall list for six months or until management determines the layoff is permanent, whichever occurs first. Removal from the recall list terminates all job rights the employee may have.” Six months is also the triggering point for notices and other obligations under the federal Worker Adjustment and Retraining Notification Act (WARN) and similar state and local laws. As such, the six-month timeframe could be extended to new hire paperwork and procedures, including background checks. Other than this parameter though, it depends on the policy and contractual terms involved.
To determine whether a furloughed employee will need a new background screening, employers should look at their client agreements regarding background checks and their own internal policies. Specifically, what do the terms call for? What are the employer’s responsibilities? What are the employee’s rights? Do they define “new hire” or state that if an employee is furloughed for a certain amount of time, he or she must have a new screening done? If so, what is that timeframe–60 days; 90 days?
If, under the terms of the contracts and/or policy, it is determined that the employee should have a new background screening completed, the employer then must consider the appropriate disclosure and authorization requirements under the FCRA, just as they would with any other screening. Some background screening policies include an ongoing consent for the term of the employment relationship. If the policy includes this evergreen language, ordering an additional background check is permissible without obtaining a new authorization from the employee. However, if the policy does not contain this language or it is outdated, a new authorization under the FCRA must be obtained prior to conducting the background screening. In some states, like California and Vermont, it is required that employers always get a new authorization, regardless of the language in their policies. Additionally, if something adverse is discovered in the process, the FCRA pre-adverse and adverse action requirements must be followed.
If an employer chooses to conduct a background check on employees returning to work, several factors should be considered. What level of background search is needed? What if there are delays in receiving the results due to court closures? Can the employer supply a batch upload of employees to their vendor and avoid the disclosure and authorization process? What happens if a criminal record is returned? We recommend meeting with your background screening provider and your legal counsel to discuss these factors and more before implementing a re-check of current employees.
Similar to the background screening process, an employer needs to start with their contracts and drug screening policy to determine what is permissible and/or required. What does their policy say about drug tests? Does it speak to re-testing after the employee has not worked for a certain amount of time? If so, how long is that time period? Additionally, as always, the employer must look at the applicable state and local laws, as some will limit testing unless there is reasonable suspicion to do so.
There are many other factors that should be considered, including the type of industry involved, if safety-sensitive positions and/or the DOT regulations apply, and random testing. For example, if an employee was selected for random testing while on furlough, he or she can be sent immediately upon return. If he or she was removed from the testing pool while on furlough, then a new pre-hire test may be required.
Whether employees need a new background or drug screening aside, this situation presents an opportunity to review policies and procedures to ensure they cover these types of circumstances. While we hope we do not encounter something like this again, if COVID-19 has shown us anything, it’s that we need to be as prepared as possible for the unexpected. If the policy and/or contracts do not address what happens when returning from a furlough and the amount of time of that furlough, revisions should be made.
At Hire Image, we understand the importance not only of background and drug screenings, but maintaining and updating policies for compliance purposes. Please contact us if you need assistance in the review of your background and drug screening processes or policies.