With all the controversy and divisiveness surrounding the 2020 election, Americans appeared united on one subject—legalizing marijuana. In fact, it was one area that was seemingly powerful enough to garner bipartisan support, not an easy feat this (or any) year. According to a Gallup Poll released on November 9th, 2020, 68% of Americans favor legalizing marijuana, doubling the approval rating from 2003. This result is likely due to a combination of lengthy campaigns by medical marijuana supporters and the devastated state economies due to the pandemic. However, while there may be some consensus on broad legalization, there is anything but harmony with regard to testing, accommodations, and CBD use.
Overall, the elections resulted in two additional states approving medical marijuana, Mississippi and South Dakota, with recreational marijuana winning big in New Jersey, Arizona, Montana, and South Dakota. South Dakota even made history in 2020 by becoming the first state to pass both medical and recreational marijuana legislation at the same time.
2020 State Marijuana Legislation
Medical
Mississippi – Initiative 65 was approved by an overwhelming majority of Mississippians. Under the Initiative, physicians can prescribe marijuana to patients with certain debilitating medical conditions where he or she believes the benefits of using medical marijuana would “reasonably outweigh potential health risks.” The process includes the physician issuing a certificate to the patient, allowing the patient to obtain a medical marijuana identification card, and then allowing him or her to use marijuana for the time prescribed. Patients may purchase and carry up to 2.5 ounces of marijuana at any given time. Medical marijuana is anticipated to be available in Mississippi by the summer of 2021.
Section 3 of the Initiative briefly discusses employment scenarios, stating that a patient cannot require “accommodation for the use of medical marijuana or require any onsite use of medical marijuana in any public or private correctional institution, detention facility, or place of education or employment.”
Recreational
New Jersey – Public Question 1, a constitutional amendment, was approved for the possession and use of up to 6 ounces of marijuana for adults age 21 and older in New Jersey. It also includes the cultivation, processing, and sale of marijuana. There is currently no language pertaining to the workplace or employers contained in the amendment. However, it is still early, and language could be added in forthcoming regulations.
New Jersey legalized medical use of marijuana in 2010, and is now the first state in the mid-Atlantic region to approve its recreational use. Many anticipate that neighboring states will be soon to follow.
Arizona – Proposition 207, known as the Smart and Safe Arizona Act, allows adults age 21 and over to travel with up to 1 ounce of marijuana and grow up to 6 marijuana plants at home. Proposition 207 will become effective once the election is certified, which should be no later than November 30th. However, Arizona shops cannot apply for licenses until January of 2021, after the Arizona Department of Health formulates regulations.
Proposition 207 includes language specifically protecting the workplace. Section 2-2(c) states, “Employers retain their rights to maintain drug- and alcohol-free places of employment.”
Montana – Marijuana Legalization and Tax Initiative I-190 approves recreational marijuana possession and use by adults age 21 and over. According to the Initiative, adults can possess, purchase, use, ingest, inhale, or transport up to 1 ounce of marijuana. Adults may also plant or cultivate up to four mature marijuana plants and four seedlings.
Montana included employer protections in the Initiative. Specifically, “Employers are not prohibited from disciplining employees if they violate their workplace drug and alcohol policy or if they work while intoxicated by marijuana.” Medical use has been legal in Montana since 2004.
Both Medical and Recreational
South Dakota – According to Matthew Schweich, deputy director of the Marijuana Policy Project, “South Dakota has made history by becoming the first state to legalize medical marijuana and legalize marijuana for adults on the same day.”
Under Initiative Measure 26, patients suffering from debilitating conditions will be permitted to purchase and possess up to 3 ounces of marijuana from a licensed dispensary. Patient registration cards are expected to be issued by November 18, 2021.
The Initiative states that a qualifying patient must be treated the same as any other person who is prescribed a pharmaceutical medication in any interaction with the person’s employer. The Initiative also notes, “Nothing in this Act prohibits an employer from disciplining an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.”
Under Constitutional Amendment A, recreational marijuana was also approved in South Dakota. Adults 21 and older will be permitted to possess and distribute up to 1 ounce of marijuana. Additionally, they will be allowed to cultivate up to 3 cannabis plants.
Constitutional Amendment A also addresses employer concerns in that it does not require that an employer permit or accommodate marijuana usage or affect an employer’s ability to restrict his or her employees’ use of marijuana.
Both measures are set to become effective on July 1, 2021.
Where We Stand Today
Post-election, there are 35 states that have now approved marijuana for medicinal use and 15 states that have approved marijuana’s use recreationally. Washington DC permits both. Within the past year, there has also been the implementation of Nevada and New York City’s bans on pre-employment testing for marijuana. With the significant budget shortfalls following the pandemic’s devastating impact and the enormous amount of money involved in the marijuana industry, more states across the country are expected to consider marijuana legislation in 2021.
Marijuana, of course, remains a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. However, there is a chance that could change sooner rather than later. In December of 2020, the House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act (“MORE Act”), which would remove marijuana from the list of scheduled substances and clear the way to erase nonviolent federal marijuana convictions. It is yet to be seen what the Senate will do about the MORE Act, but there could be more pressure to make a change. Supporters, including the powerful marijuana industry and struggling state governments argue that the marijuana industry creates much-needed jobs and generates much-needed revenue in an economy that desperately needs both. Whenever billions of dollars are involved as it is here, it means big business and more power. How that power will affect the federal government’s stance on marijuana is yet to be seen.
It is early in the process for the five states that approved marijuana this year. Many still have to go through numerous legislative steps until there is an effective law. Also, despite the overwhelming support in most states, there is still strong opposition, which could lead to legal challenges. Finally, the involved states’ various departments of health must determine appropriate regulations and guidance before any laws go into effect.
Hire Image understands drug screening in the workplace and employers’ rights as they pertain to drug free workplace policies and drug testing, while remaining compliant with state laws. The uncertainty surrounding marijuana’s status as legal or not, CBD use, and an employer’s obligation to provide accommodations almost guarantees additional legislation and caselaw in 2021 to determine the parameters of the future of drug screening. As always, we strive to be your trusted source for background checks and drug screening. Contact us today to get your questions answered. For more information on Medical or Recreational Marijuana, and whether they affect your state, visit our resource guide at the Hire Image Resource Library.
1. Background Screening Challenges Continue as a Result of COVID-19
Various government, business, and education closures have been a necessary, but concerning, effect of the pandemic. These closures have had broad implications across many different industries, including background screening. And there is little doubt these implications will continue into 2021.
Court closures remain in jurisdictions with increased COVID-19 cases. Some courts have restricted access to records or have placed time restrictions under which to obtain records. While there are workarounds in some instances, these closures and delays often impact the timing of criminal searches.
Employment and education verifications are also affected in that many employers and educational institutions have staff working remotely, who do not have information as readily available as they previously had. Additionally, some employers have closed permanently, resulting in an inability to verify past employment. Similar to criminal searches, there may be alternatives in these scenarios.
Employers have also struggled with various aspects of transitioning to remote workforces, such as with Form I-9 document inspections. Early last year, Immigrations and Customs Enforcement (ICE) began allowing for flexibility with the Form I-9 physical presence requirements for employers with remote employees, provided that once the employees are physically present, there is in-person re-verifications within three business days. This flexibility extends through January 31, 2021, but is expected to continue.
2. COVID-19 Impacts to Drug Screening will Continue
COVID-19 will continue to have tremendous impacts on how, when, and where drug screenings are performed. Many people are reluctant to go for drug testing at a facility that also conducts COVID-19 testing in fear of contracting the virus. As such, employers must now address and alleviate concerns of applicants and employees refusing to go for routine drug testing, according to the company’s drug free workplace policy.
Additionally, many collection sites have now implemented new policies and procedures for specific tests. For example, some collection sites no longer conduct Breath Alcohol Tests (BAT) or Pulmonary Function Tests (PFT), limiting options for applicants. Hours of operation continue to be fluid based on staff availability and sanitizing schedules, and more collection sites now require appointments for drug testing.
With the pandemic reaching new heights, this trend will continue into 2021. Employers should review and rewrite their drug policies and protocols, as needed, and determine alternative solutions to their drug testing needs.
One possible solution that will likely see an increase in demand is remote oral fluid testing. Testing kits can be sent to applicants at their homes allowing them to provide a sample, which can be monitored through teleconferencing options. The samples are then sent back to the testing laboratories, eliminating the need for in-person testing in many situations.
3. Court Access Issues will Evolve After COVID 19 Shutdowns
The trend of limiting access to criminal records has exploded throughout the country over the past couple of years. And, with unemployment at record highs due to the pandemic, this is a trend that is expected to continue into 2021.
Legislation limits access to some records and seals others. In some instances, any personal identifying information, or PII, is removed, making it difficult to determine if the record belongs to the applicant involved. In other instances, courts have refused to share records at all. Additionally, many states and localities are now automatically sealing convictions under Clean Slate Acts. In fact, courts in Pennsylvania (the first state to pass a Clean Slate Act) have until June 27th of this year to seal 30 million criminal records. Other states, including Utah, California, and Michigan also have similar legislation. Los Angeles and Chicago have also cleared thousands of records resulting from certain marijuana convictions.
With these limitations, employers will continue to be concerned that the candidate who was reported as “clear” may still have a criminal background. To date, the legislation relates to older charges and minor drug possession charges. However, with a high unemployment rate and initiatives to get people back to work, employers will want to keep apprised of legislation that may further restrict access to criminal record information, potentially impacting the safety of workplaces, properties, customers, employees, and tenants.
4. Patchwork of State and Local Laws will Continue to Challenge Employers
While the pandemic slowed down much of our lives, it did not slow down the enactment of new laws limiting information that can be obtained by employers or available courses of action for them. Ban the Box and Salary History Bans continued to be enacted in 2020.
New (or amended) Ban the Box Laws included: St. Louis, Missouri (effective January 1, 2021); Virginia (marijuana possession only – effective July 1, 2020); and Hawaii (amended to provide additional protections to ex-offenders – effective September 15, 2020). For Salary History Bans, Maryland was the only state to pass legislation in 2020 (effective October 1, 2020).
These laws go beyond banning a box or not being able to inquire into prior salaries. There are larger implications to making hiring decisions without having complete information about the individual involved. It is expected that similar laws will be enacted throughout the country in 2021.
5. Election Results Impact Background Screening
Marijuana took center stage at the 2020 election. Mississippi passed a medical marijuana law (effective July 1, 2021), while Arizona (effective date to be determined), New Jersey (effective January 1, 2021), and Montana (partially effective October 1, 2021) each passed recreational marijuana laws. South Dakota passed both medical and recreational laws (effective July 1, 2021).
We do not see this trend of increased marijuana laws going anywhere. In fact, according to a Gallup poll in November of 2020, 68% of Americans are in favor of legalizing marijuana (up by 10% since 2015 and 20% since 2010).
Additionally, many election overtones point to increased laws over the coming year regarding criminal records, drug testing, and other areas for employers. There may also be changes on the consumer reporting side, as per the recent nomination, the Consumer Financial Protection Bureau (CFPB) will soon fall under the leadership of an aggressive consumer advocate.
6. Privacy Laws Increasingly Affect Background Screening
COVID-19 has affected, and will continue to affect, privacy and security matters across all industries. As employees return to work, and employers face increased challenges to provide safe work environments, there will inevitably be new privacy concerns. While innovative technologies (symptom screening, contact tracing, etc.) to support re-opening initiatives can be helpful, employers must ensure they remain in compliance with all applicable laws, including, where appropriate, the notice and consent requirements under the Fair Credit Reporting Act, the California Consumer Privacy Act (CCPA), and European Union’s General Data Protection Regulation (GDPR).
COVID-19 has also prompted more expansive privacy and security measures. For example, employers in California should keep apprised of recently enacted Proposition 24, the California Privacy Rights Act (CPRS), which will further expand the CCPA. While this expansion becomes effective on January 1, 2022, employers should monitor developments to ensure their own privacy policies and procedures remain in compliance. Additionally, there is now federal prioritization of data security and privacy issues, with the introduction of the Consumer Data Privacy and Security Act of 2020 (CDPSA). If passed this year or in the following years, it will provide consumers with expansive rights over personal information and even broader privacy and security compliance obligations for employers.
2020 also saw the dismantling of the EU-US Privacy Shield, a framework for regulating transatlantic exchanges of personal data for commercial purposes between the European Union and the United States, by the Court of Justice of the European Union. Privacy Shield was found invalid due to its inadequacy to provide sufficient protections in the United States for personal data of EU origin. In November of 2020, the European Data Protection Board (EDPB) adopted recommendations to help ensure compliance with EU levels of protection of personal data.
With all of these developments, employers should stay aware of privacy and security concerns. Further, businesses that utilize a consumer reporting agency for their background screening services should be sure to partner with one that has achieved accreditation with the Professional Background Screeners Association (PBSA) Background Screening Credentialing Council (BSCC). The Background Screening Agency Accreditation Program (BSAAP) standard, policies and procedures, and measurements are available at http://www.pbsa.com.
7. Companies Begin More Rigorous Screening Practices for Third-Party Vendors and Contractors
With companies of all sizes struggling to stay in operations due to the pandemic, many will choose to outsource various functions of their business. In doing so, the need for a comprehensive screening policy to cover the third-party vendors and contractors with whom they work will be vital in protecting their interests. Cases involving delivery companies or others contracted by another company where a tragedy unfolds, and where the contracting company is held responsible, have become far too common throughout the country.
Going forward, companies will not only need to assess their own screening criteria, but also that of their vendors and contractors. Ensuring the same criteria is applied, whether it is for an employee, vendor, or independent contractor is crucial for consistency in keeping the company, its employees, and its customers safe.
8. Applicants Have Higher Expectations Regarding the Candidate Experience
In recent years, applicants have expressed a desire to work for companies that value them and their time throughout the hiring process, and this will continue in 2021. To them, it sets the expectations for the company’s culture and work environment. Each year, there is new technology to speed things up and provide for nearly instant gratification in many situations. This ease of information is what today’s candidates are accustomed to, and they expect the same as it relates to background checks and interviews.
In 2021, employers should consider what processes and technology are available to streamline the hiring experience, including mobile-friendly apps and increased communications. Employers must also pay close attention to their online reputation management, as many applicants choose to express their negative views of the employer’s hiring process on social media platforms.
9. Continuous Monitoring Becomes More Commonplace
Particularly in light of the increased remote workforces around the country and world, more companies are realizing the importance of monitoring employees for indications of illegal behavior, including DUIs or other reckless driving reports. Employees represent a company’s brand, and now, often are needed to do so from home. Additionally, employees could have access to financial and other confidential information, raising privacy and security concerns. Not having trustworthy employees can lead to loss of productivity, workplace safety, and theft.
Continuous monitoring mandates continuous compliance. Employers must ensure that they have the employees’ consent to continue to conduct background screenings throughout their employ. Policies should reflect clearly when the screenings will occur and why, and apply equally to all employees.
10. The Evolution and Confusion Related to Drug Screening Continues
As predicted, 2020 shaped up to be one of the biggest years for marijuana-policy reform. Last year saw the implementation of Nevada and New York City’s bans on pre-employment testing for marijuana. And the November election demonstrated the overall increasing acceptance of marijuana legalization. However, while there may be some consensus on broad legalization, there is anything but harmony with regard to testing, accommodations, and CBD use.
The use of CBD products is now fairly widespread. CBD, while not technically marijuana, could still lead to a positive marijuana drug test. As such, more applicants and employees may fail a drug test because of an unregulated substance.
Additionally, marijuana remains a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. But more than half the states have legalized it in some form, with their own nuances. Employers are also continuing to struggle with questions, such as: Do I have to accommodate marijuana use? Can I still have a drug-free workplace? Can I get sued for terminating an employee for a drug test that is positive for marijuana?
The uncertainty surrounding marijuana’s status as legal or not, CBD use, and an employer’s obligation to provide accommodations almost guarantees additional legislation and caselaw in 2021 to determine the parameters of the future of drug screening.
A Worldwide Pandemic Helps Reveal the Truth Behind Working with Small Businesses
By: Christine Cunneen
As the owner of a small business, it is probably not surprising that I have strong feelings about the unique value small businesses bring to the table for their employees, communities, and clients and customers. However, it has never been more apparent to me than over the past few months, as we have faced a global pandemic and economic crisis, the scales of which we have never before experienced.
Many of us have known about, discussed, and experienced the ideals and advantages of working with a small business. Small businesses tend to be more focused on, and driven by, relationships, often resulting in stronger teams and exemplary customer service. They are flexible and nimble, with the capacity to adjust to challenges and changes quickly. They also tend to be more creative, dependable, agile, and passionate about their “why.” Additionally, small businesses generally have strong cultures, with a passion that can only exist through the robust history and story of the owner. Small business proponents would likely agree that this is a fair assessment of these ideals and may offer specific, but sporadic, examples of employee benefits and initiatives, outstanding customer service, customized offerings, and creative solutions. However, the frequency at which we have seen these ideals in action and in varying forms has increased drastically throughout the pandemic.
This was brought to the forefront for me recently through a few notable situations. As COVID-19 impacted the world in ways we could have never anticipated before, we saw it bring out the best in some people and the worst in others. It was crucial for everyone to have the ability to shift quickly—large and small businesses alike, teachers, doctors and nurses, and parents, among others. While we saw some larger corporations struggle with moving to a remote workforce situation, grapple with security issues, and contend with regulatory mandates, smaller businesses did not appear to struggle quite as much. Maybe this seems counterintuitive, as large businesses certainly have more than enough resources. However, if we think about small business ideals, we find that it’s not counterintuitive at all.
With our small business accustomed to being flexible and nimble, we had the tools in place and readily available to make those shifts quickly. For example, as a highly client-driven, service company, we were able to equip our staff to work remotely and implement new security protocols almost instantaneously. We continued to deliver the service to which our clients were familiar throughout the entire transition process and afterwards. We were able to quickly identify and react to challenges as they arose because there was not a barrage of red tape and countless meetings and approvals. There was a quick, but thorough leadership meeting, decisions made, and progress forward.
Additionally, in an industry that is heavily reliant on other companies (for employment verifications), universities (for educational verifications), courts (for criminal checks), laboratories (for drug screenings), and DMVs (for driving records), all of which were closing at a rapid pace, we were able to innovate and find ways to work-around these challenges. Many of these work-arounds were based on long-lasting relationships with vendors and other partners that we had built and maintained throughout the years. In most instances, we were able to complete our services and provide a background or drug screening report to our clients with the fast turnaround time they require. We put forth that extra effort for our clients because they are what it all comes down to for us. They need to ensure a safe workplace and our job is to help them do that, no matter what.
These steps seemed natural to us. Yet, we saw others seemingly hide behind their COVID-19 mask and make excuses, claiming they could not fulfill their obligations for one reason or another. We never looked for excuses, only for solutions to the unique circumstances in which we found ourselves. I have never been more proud of our resiliency and determination as a team.
This is not to say that larger companies can’t get the job done. Of course, they can and do. It is also not to say that you can’t have a great relationship with someone at a larger company. I have plenty of them. What I have realized is that oftentimes, their hands are tied. As such, their inability to help is not their fault at all, but rather a by-product of the layers of red tape and restrictions found within larger organizations. Whatever the reason though, the end results are often the same—generally, less than adequate communications and outcomes.
During the pandemic, I saw the effects of small business ideals in another situation. As most of us are aware, the Paycheck Protection Program, while theoretically beneficial for small businesses, logistically, was a nightmare for most. For the first round, I applied through my bank, which is a large bank and one I have worked with for many years. I submitted my application on time and did everything I was required to do. Yet, when I asked for updates, I barely got a response. And, when I didn’t get the loan, there was no explanation whatsoever. As their long-time customer, I deserved more. For the second round of funding, I was able to work with a local credit union. The entire experience was different. They guided me through each step and kept me informed throughout the process. As if that wasn’t enough, my application was also approved.
This got me thinking that it wasn’t just about getting the money. Why was the process so difficult the first time around? It was the same process, yet the level of care and guidance I received the second time could not compare to the first. Again, not to mention, I actually received the desired end result as well. And then I remembered what I already know—small businesses not only get the job done, but they do so in a way that makes you feel as if you matter. That is exactly what I experienced with the local credit union.
Again, this is nothing new, at least not for me and for countless other small business owners. What has been revealing is the extent to which the ideals of small business have played a part in this pandemic. My hope is that this increased exposure to the benefits of working with small businesses will remind people not to discount us simply because of our size. And instead, to remember that what we offer is far larger than our size and far more valuable.
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Christine Cunneen is the CEO of Hire Image. She is Past Chair of the Professional Background Screening Association (PBSA) and a SHRM member, serving on the advocacy and legislative committees. Cunneen has a BBA in accounting, is a CPA, and has been in the HR industry for 14 years. She is a frequent speaker at events educating employers and other professionals about background screening and is often quoted for her expertise.
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.
Background Screening
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.
Drug Screening
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.
As we all watch unprecedented actions and prepare ourselves for the expanding reach of COVID-19 (Coronavirus), we want you to be aware that we are taking every feasible precaution to keep our staff and clients safe, and our business functioning, with as few interruptions as possible.
We have had a Business Disaster/Recovery Plan in place for many years. Our leadership team has recently reviewed this plan in consideration of the current situation. We remain hopeful that it will not have to be implemented; however, if it does, you can rest assured that we are prepared. Our ability to provide the exemplary services to which you are accustomed will continue through internal adjustments, which will not affect you.
We will make risk assessments and corresponding decisions as necessary, according to the plan we have in place, which includes different phases based on our evaluation of risk. At this time, we are operating as usual, with a heightened sense of awareness and additional practices in place to help ensure our maintenance of a healthy office atmosphere.
If mandated by the state or federal government, or by circumstances outside of our control, all of our critical staff can work remotely and securely, with no interruption to our services. We would be able to maintain all critical business operations in this manner for whatever amount of time is necessary.
Unfortunately, there are many situations that are outside of our control in their effects on the background and drug screening processes. Below is a summary of those situations and their potential effects. We will continue to update this information, as it becomes available to us.
Over the past few days, many higher education institutions have closed, for varying lengths of time. Closures of this magnitude may affect turnaround times for education verifications.
While we are unaware of any current court closures, it is possible that other government institutions, including courts, may follow the lead of the colleges and universities and close as well. Our court researcher partners are also monitoring this situation. If there are court closures, we will immediately notify affected clients via the home page of our Screening System.
Although there are currently no impacts to our drug screening and occupational health facilities, we expect there may be delays that arise in this area due to the increased burden on healthcare facilities throughout the world.
As the effects of this pandemic are being felt in countries around the world, international verifications and searches are also expected to be delayed. Specifically, those in China and Italy.
We are working closely with our local governmental offices and are monitoring developments from several sources, including the Center for Disease Control (CDC) http://www.cdc.gov/.
As with most situations, knowledge and communication are the keys to success. We will continue to post updated information as it becomes available. If you have any questions or require additional information, please do not hesitate to contact us at contact@hireimage.com.
1.Access to Criminal Data Faces Severe Limitations
Legislators and courts around the country are making data more difficult to obtain for background screeners and their clients. This trend is moving throughout the country and is expected to continue in 2020.
a. Access to Records
Although the court records utilized by background screeners are considered public records, the courts have been limiting access over the past few years. Some limitations relate to the removal of personal identifying information (PII), making it difficult to ensure the record belongs to a specific applicant. Other limitations relate to court personnel refusing to share the records at all. An example is the Clerk of the District Court of Benton County, Arkansas, who withheld entire court records. The Professional Background Screening Association (PBSA) took them to court and fought for the right to have access.
b.Sealing/Limiting Records
Last year saw many states and localities automatically sealing convictions under Clean Slate Acts. Pennsylvania became the first state in the country to pass a Clean Slate Law, automatically sealing certain criminal records via technology. The law went into effect in June of 2019 and the process of sealing records officially began. Pennsylvania courts have until June 27, 2020 to seal more than 30 million records. Two other states, Utah and California, followed in Pennsylvania’s footsteps shortly thereafter. Michigan also recently introduced similar legislation. Localities are joining in as well, with prosecutors in both Los Angeles and Chicago erasing thousands of marijuana convictions from criminal records, clearing nearly 18,000 misdemeanor convictions for possessing less than an ounce of marijuana.
As this trend continues, employers are increasingly concerned that the candidate who was reported as “clear” may still have a criminal background. The legislation thus far relates to older charges and minor drug possession charges. However, employers will want to keep an eye on legislation that may further restrict access to criminal record information, potentially impacting the safety of workplaces, properties, customers, employees, and tenants. Going forward, employers should discuss the reporting used by their background screening providers to help ensure they have appropriate access to their candidates’ criminal histories.
2.Courts Continue to Debate FCRA Application to Independent Contractors and Other Non-Traditional Employees
The issue of whether the FCRA requirements apply to independent contractors has recently been brought back to the forefront. Contrary to the long-standing liberal interpretation of “employment purposes” from the Federal Trade Commission (FTC), which does include independent contractors, agents, and volunteers in its definition, some courts held last year that the protections afforded when consumer reports are obtained for “employment purposes” under the FCRA do not extend to reports obtained for independent contractors.
As most people are aware, the FCRA requires that disclosures are clear and conspicuous and in stand-alone documents when the report is obtained for “employment purposes.” “Employment purposes” is defined in the FCRA as “a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” (emphasis added)
The evolution of this issue demands attention. While there appears to be a trend for employers under these circumstances, they should still exercise caution, as some courts have also taken, and may continue to take, a broader view of the term “employment purposes.” Until there is more clarification, employers may consider treating independent contractors the same way they would treat employees for the purpose of the FCRA’s requirements. In doing so, they would be well-advised to create a separate background screening policy for independent contractors, rather than including them in the employee background screening policy. Modifying forms to refer to the applicant as an independent contractor and not as an employee could help to avoid the question of the status of that work relationship for other reasons later.
Privacy concerns permeate almost everything we do now, especially with the increase of online “living.” These concerns affect not only consumers, but also the companies that must securely maintain and dispose of records containing sensitive information.
The Federal Trade Commission regulates business privacy laws and policies in the U.S. that impact consumers, including the Fair Credit Reporting Act, which governs background checks and provides guidance on best practices businesses should follow to keep data secure. Additionally, post-2018, the European Union’s General Data Protection Regulation (GDPR) mandates action by companies and institutions around the world. 2019 saw the imposition of many penalties under the GDPR, but none as large as the 50-million-euro penalty imposed against Google last January. State privacy regulations are now also coming into play more than ever. For example, California’s Consumer Privacy Act (CCPA), which some are calling the U.S. version of the GDPR, creates new consumer rights relating to the access to, deletion of, and sharing of personal information that is collected by businesses.
With more consumers exercising their privacy rights, and with more avenues to do so, an increase in privacy-related litigation will ensue. Businesses should stay abreast of all privacy laws and regulations affecting them. In addition to following the FTC’s guidance on the proper data security practices, businesses that utilize a consumer reporting agency for their background screening services should be sure to partner with one that has achieved accreditation with the Professional Background Screeners Association(PBSA) Background Screening Credentialing Council (BSCC). The Background Screening Agency Accreditation Program (BSAAP) standard, policies and procedures, and measurements are available at http://www.pbsa.com.
4. Companies Begin More Rigorous Screening Practices for Third-Party Vendors and Contractors
As companies continue to outsource various functions of their business, the need for a comprehensive screening policy to cover the third-party vendors and contractors with whom they work will be vital in protecting their interests. Nothing is more evident of this need as the tragic story of the Florida grandmother killed by a delivery worker contracted by Best Buy. While the delivery worker was employed by a third-party company hired by Best Buy for deliveries, it is Best Buy that is named in the lawsuit.
With cases like this in the news and some states beginning to address the issue (Florida has recently introduced a bill to require background checks on third-party delivery companies), companies will not only need to assess their own screening criteria, but also that of their vendors and contractors to ensure the same criteria is applied. Confirming that each vendor and contractor follows the same screening requirements is crucial to keeping the company, its employees, and its customers safe.
5. Employer Policies Require More Updates and Reviews Due to Increase in Laws Impacting Employers
More states are enacting legislation that affects employers, employees, and job applicants at an increasing rate. As they do so, employers must update their policies and procedures on a regular basis to remain in compliance. This is especially true for employers conducting business across state lines, as each state’s laws have their own nuances, to which employers must adhere.
Background and Drug Screening Policies should be reviewed to update for the latest changes in the industry, including, but not limited to, Salary History Bans and Ban the Box laws. What can and cannot be asked during the interview process should be clearly documented in the company’s Hiring policies. Drug Screening policies, also known as Substance Abuse Policies, should include how CBD use is handled and reasonable accommodations as it relates to medical marijuana and the American Disabilities Act. Attention to the state and local laws are more important than ever in this area. Other policies that should be reviewed are Equal Pay and Wage Discrimination policies, with the onslaught of salary history laws making its way around the country, and any Safe Driving policies, with new cellphone laws being enacted at an increasing rate.
6. The Evolution and Confusion Related to Drug Screening Continues
a.Oral Fluid Testing and D.O.T. Mandatory Guidelines Result in Employment Drug Testing Changes
For many years, urine drug tests were used more frequently than any other drug test for employment screening. However, the last couple of years have seen the emergence of more options, some of which are far more convenient and accurate. Specifically, more employers are using oral fluid, lab-based testing, which is considered better at detecting recent drug use than urine and hair drug tests. According to Quest Diagnostics, “[b]y using oral fluid instead of urine, donors can collect their own samples on-site and in the presence of a monitor, reducing the likelihood of tampering or a donor challenge later in the screening process.”
Last year also saw the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services (HHS), establishing guidelines to include oral fluid specimens in the Mandatory Guidelines for Federal Workplace Drug Testing Programs. The new Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid (OFMG) allows for the collection and testing of oral fluid specimens by federal executive branch agencies and other agencies, including the Department of Transportation and Nuclear Regulatory Commission (NRC). This is the first time a new drug screening test has been added since the guidelines were first published in 1988, requiring only urine specimens.
Oral fluid, lab-based testing has begun to establish itself as the most efficient and accurate drug test in the industry. And, now with the federal guidelines in place, the trend will continue in 2020, with more businesses turning to this method.
b. Lawsuits Increase Surrounding Marijuana and CBD Use
If you are an employer who conducts employee drug testing, you have probably been asking some familiar questions recently, namely, among others: Do I have to accommodate marijuana use? Can I still have a drug-free workplace? Can I get sued for terminating an employee for a drug test that is positive for marijuana?
Marijuana continues to remain a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. However, more than half of the states across the country disagree and have now legalized marijuana for either medical or recreational use. Each state’s law also has its own nuances. This inconsistency among states and between states and the federal government leaves many employers asking what the changing laws mean for their existing drug screening policies.
Legislation up to this point has focused on legalizing marijuana for medical or recreational use. However, in 2019, Nevada, following in New York City’s footsteps, became the first state to prohibit employers from refusing to hire a prospective employee because he or she submitted to a screening test and the results indicate marijuana. Nevada’s law became effective January 1, 2020, while New York City’s becomes effective May 20, 2020.
To further complicate matters is the now fairly widespread use of CBD products. While it is not marijuana, per se, use of CBD could still lead to a positive marijuana drug test. Since CBD has not yet been regulated, and many products contain THC, the component in marijuana that results in a positive result, more applicants and employees may unknowingly fail a drug test. We expect this area to continue to cause major issues among employers.
The year 2020 is already shaping up to be one of the biggest years for marijuana-policy reform. Many state legislatures will seriously consider cannabis legalization and voters in other states could face a question about the legalization of cannabis for medical or adult use on their November ballots.
7.Applicants Have Higher Expectations Regarding the Candidate Experience
Today’s job candidates are accustomed to streaming, texting, video conferences–basically, instant gratification. Even email seems slow to those emerging into the workforce. When it comes to interviewing for a job and having their background check conducted, they expect the same swiftness they have been surrounded with their whole lives. In fact, Glassdoor polls show that more than half of job-seekers would consider pulling out of a lengthy selection process. They want to see that their time is valued and if it’s not, they are not afraid to go to social media to express their negative opinions of that business.
Employers should begin to take these factors into consideration, if they haven’t already, with response time involved, interview techniques, and the background screening process. In 2020, employers may start considering what processes can be implemented to make the experience more streamlined and faster, without sacrificing quality. Additionally, and maybe most importantly, can any of the processes become mobile-friendly? Overall, employers should start looking to improve the entire on-boarding experience by focusing not just on what they need, but also what their applicants need.
8.State and Local Limitations on What Can and Cannot be Done by Employers Increase
There are more jurisdictions, both at the state and local levels, with Ban the Box laws and Salary History Bans than ever before. Additionally, more states have enacted various types of marijuana laws, as discussed more in depth above. Together, these laws, and others like them, severely restrict the information to which a prospective employer has access in order to make hiring and promotion decisions.
The substantial increase in these types of laws, coupled with criminal justice reform that is just beginning to scratch the surface, is leading employers down a path they do not want to go–having to make hiring, promotion, and other business decisions with only limited information on their applicants and/or employees. While the reasoning behind these laws is sound, unfortunately, there is not much in terms of protecting the employers.
In 2020, employers will, unfortunately, continue to struggle with the need to balance their decision-making process in the face of compliance with all of these laws and the effective running of their businesses, including protection of their customers and property.
9.Continuous Monitoring Becomes More Commonplace
Industries other than on-demand industries, such as Uber and Lyft, have begun to realize the benefits of continuous background screening monitoring over the past couple of years and we expect this to continue. Technology has made it easier than ever to continuously monitor employees for indications of illegal behavior or reckless driving reports. Employees not only represent a company’s brand, but also could have access to financial and other confidential information. Not having trustworthy employees can lead to loss of productivity, workplace safety, and theft.
As 2020 brings continuous monitoring, it also brings continuous compliance. Employers must make sure to have the employees’ consent to continue to conduct background screenings. Additionally, employers should ensure the technology used is providing objective recommendations, with no perceived or actual built-in biases.
10.Global Screening Programs Evolve
With a now firmly established global economy and more companies employing individuals across the globe each day, having a comprehensive global screening process is crucial to a company’s success. The information required, as well as the results available, will vary from country to county, as will the privacy laws affecting access. As such, companies are seeing the need for a global screening program in order to have a flexible process to account for the varying laws, requirements, and of course, the cultural differences. This need will continue to expand in 2020 and beyond.
Companies are understanding that the old notions that a global screening program is not worth it, too expensive, or too time-consuming are simply not the case. Rather, they want to know where candidates have lived, where they have studied, where they have worked, regardless of whether it is here in the United States, Europe, Asia, South America, or somewhere else. With a comprehensive global screening plan in place, companies can mitigate risks and take advantage of the benefits of increased diversity, including differing skills, creativity, and ideas in the workplace.
