Employment Background Screening Solutions

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Avoiding Pre-Hire Background Checks: The Legal and Business Impact

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Neglecting Pre-Employment Screening: Legal Risks and Business Implications

Many business owners try to save time and money during the hiring process by skipping background checks. But neglecting pre-employment background checks can lead to significant financial losses, hiring liability, and risk management issues. Not verifying the credentials and qualifications of job candidates can lead to fraud, negligent hiring lawsuits, and loss of productivity. It can also damage a company's reputation and brand. To avoid legal and financial consequences, it's important to develop a background check policy and invest in pre-employment screening services. SecureCheck360 is a FCRA compliant employment verification services company that specializes in background checks and can help protect your business. It's important to remember that background checks are worth the investment, as they can save you time, money, and stress in the long run.

Why not learn about all the implications in detail, click here to read more.

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Updated ODAPC Guidance and Extended Timeframes for DOT Statement of Enforcement Discretion for Substance Abuse Professionals and Service Agents

The Office of Drug and Alcohol Policy and compliance has updated its statement of enforcement discretion for substance abuse professionals (SAPs) and service agents guidance document to reflect that the guidance timeframe has been extended from September 30, 2020, and is now effective until December 31, 2020.

Updated Guidance can be found here.

Please note the guidance includes the following parameters for SAPs conducting assessments/evaluations remotely:

Ø  The technology you use should permit real-time two-way audio and visual communication and interaction between you and the employee.

Ø  You should determine if the quality of the technology (e.g., speed of the internet connection, clarity of the display, the application being used, etc.,) is sufficient for you to gather all the visual (e.g., non-verbal physical cues) and audible information you would normally observe in an in-person face-to-face interaction.

Ø  You may only utilize the technology if your State-issued license authorizes you to do so within the parameters of that authority.

The Guidance also extends the Re-qualification timelines for certain service agents as follows:

Under 49 CFR § 40.33(e), 40.121(d), 40.213(e), and 40.281(d), collectors, MROs, STT/BATs, and SAPs are required to maintain their DOT required qualifications to continue to act as service agents in the DOT drug and alcohol testing programs. Specifically, collectors and STT/BATs must complete refresher training every five years, MROs must complete requalification training every five years, and SAPs must complete 12 professional development hours every three years.

DOT realizes that during the COVID-19 public health emergency, these service agents may find it difficult to find the necessary resources (e.g., exam location or personnel to conduct mock collections, etc.) to meet their re-qualification requirements. If a service agent is unable to meet their re-qualification due date while this statement of enforcement discretion is in effect, DOT will not consider it as non-compliance for purposes of starting a public interest exclusion proceeding against the service agent. The Department of Labor is providing this flexibility for service agents who cannot meet their re-qualification requirements by their respective due dates due to restrictions imposed by Federal, State, and Local authorities, and health agencies related to the COVID-19 public health emergency (e.g., facility closures, State or Locally imposed quarantine requirements or other impediments). DOT will consider these service agents qualified per Part 40 to continue providing the Part 40 required services while this policy is in effect.

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Developments in California Law for the Gig Economy

With many employees being furloughed or laid off as a result of COVID-19, many employees are looking to opportunities in the gig economy to supplement (or replace) their income. Any such persons should be aware of recent changes in the law that affect displaced workers.

On January 1, 2020, California’s Assembly Bill 5 (AB5) took effect, re-characterizing many independent contractors as employees for many purposes. The new law is aimed at gig economy platforms such as ride share platforms that have not provided employee protections and benefits to their drivers. Although the law affects ride share platforms, its application is much broader and effectively classifies every service provider as an employee if they meet an ABC test, which treats a worker as an employee unless the worker performs work that is outside the ordinary course of the hiring entity’s business.

The law is now being tested in the courts and a proposition is on the November ballot asking voters to give ride-sharing companies an exception to AB5. Companies like Uber Technologies, Inc. (Uber) and Post-mates, Inc., as well as the California Trucking Association, are challenging the constitutionality of AB5 in federal court. While the Federal case is pending, the Attorney General of California, joined by several municipalities, filed a lawsuit in a California State District court seeking to force Uber and Lyft, Inc. (Lyft) to reclassify their ride-sharing drivers as employees rather than independent contractors. The California State District court ruled in favor of the Attorney General but a last-minute ruling by a State’s appeal’s court delayed the enforcement of the district court’s ruling while further litigation is pursued.

At the same time as the app based drivers are challenging the law, the California Employment Development Department (EDD) has increased its enforcement efforts against misclassification of employees.

However, the court case or the vote time out, many companies will find they are operating under new rules and increased scrutiny when it comes to worker classification. The new emphasis on classification probably could not come at a worse time, as individuals seek other sources of income in the gig economy. Even new and start-up companies must be vigilant to ensure that they comply with labor laws.

As an example, a legal mistake that start-up make which is closely related to misclassification is the failure to comply with minimum wage laws, Start-up companies often attempt to pay employees in equity instead of cash, contrary to Federal and State labor laws. The costs to the employer of an erroneous position on the issue can include taxes, penalties, unpaid wages, overtime, waiting time penalties and more. The careful gig worker will be cognizant of their treatment under the Federal and State law before wither hiring workers, establishing a platform business or participating in the gig economy.

For more information on recent changes in California law. Click here to see the posted articles.

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Screening for Employment in COVID-19 Crisis: Returning to Work Safely

States across the nation are re-opening. Now businesses are challenged to help ensure that the workplaces that their valued employees and customers will be populating are safe.

Planning

A myriad of issues must be addressed to ensure compliance with applicable regulations:

·         Learn what employees can be asked regarding symptoms

·         Know how to handle confidential medical information gained from screens

·         Determine which screens may be used, their appropriateness for your needs, pros, and cons, and cost

First, management must create a policy that defines the organization’s goals to help ensure that the workplace, employees, and customers are kept virus-free during this and future pandemics (for more detail, please refer to the CDC’s guidelines):

·         Create a formal plan to manage and respond to the crisis

·         Incorporate basic contagion prevention measures

·         Draft procedures to immediately handle the identification and isolation of sick individuals

·         Follow existing Occupational Safety and Health Administration (OSHA) standards that require each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm

o   Please carefully review the document created by the U.S. Equal Employment Opportunity Commission (EEOC) that consolidates relevant coronavirus and COVID-19 information and answers questions from the public about the EEO laws and COVID-19

o   Securecheck360 offers an article titled “What Employers Should Consider as They Draft a Return to Work Policy?” exploring the spectrum of Federal, State, and Local guidelines to consider.

·         Have a screening program in place will mitigate several different risks, including:

o   Risk of return to work mass absenteeism due to pandemic

o   Risk of employee lawsuit for not providing a safe workplace

o   Risk of reputational loss due to an outbreak

·         Plan for temporary and permanent succession in case key employees may be side-lined during a crisis.

  Prospective, furloughed, or current employee?

When considering bringing employees back on-board, distinguish between current employees and furloughed employees. They may be treated differently.

An employer may not ask a prospective employee about symptoms nor take their temperature until a conditional offer of employment is offered or a furloughed employee is directed to return to work. If a candidate for a furloughed employee is exhibiting symptoms or has an elevated temperature, the employer may either delay the start date or rescind the conditional offer of employment or return to a work order.

For a current employee, employers may ask if they are experiencing symptoms of COVID-19. This can be done when employees enter the office or begin their shift. They can be asked to complete a simple questionnaire. If the employer keeps these COVID-19 related inquiries, they must be treated as confidential medical information.

It is permissible for employers to take the temperatures of employees before entering the workplace and, ideally, at regular intervals throughout the day. Logs of temperatures must also be treated as confidential medical information.

Policies regarding questionnaires and taking of temperatures must be applied uniformly to all employees, at every level of the organization. Organizations that create a written policy stating that the employer has initiated these practices to help prevent the spread of an infectious disease in the workplace can prevent claims that the practices are not being uniformly applied or are in any way discriminatory, it may also help reassume staff that your company is doing everything possible to ensure their employees’ health, wellbeing, and welfare.

Screening Mechanisms

Questionnaire

Early in the pandemic, companies deployed respiratory illness symptom questionnaires as a mechanism to screen people for evidence of COVID-19. As employees are returning to their place of employment, symptom questionnaires remain a key mechanism to assure a safe return to work. If an employee states he/she had a fever or exhibited other typical COVID-19 symptoms, that information should be used to prevent the employee from returning to duty until after the symptoms resolve for a period of days. As with any other medical information, that questionnaire must be held as confidential information.

Organizations must be able to confidently separate the ill from the at-risk from the healthy. These questionnaires are easy to distribute and may be defensible. But while they may help, individuals may not have completed them honestly. An employee may have had a fever but not be infected by COVID-19. Obviously, additional and more reliable testing is required.

Testing for COVID-19

Viral and antibody tests

The type of test used by an organization may be decided by the company and how risk-averse they want to be.

According to the CDC, there are two kinds of tests that are available for COVID-19: viral tests (also referred to as antigen tests) and antibody tests.

·         A viral test tells you if you have a current infection

·         An antibody test tells you if you had a previous infection

An antibody test may not be able to show if you have a current infection, because it can take about one week after infection to make a detectable level of antibodies.

From a return to work testing perspective, there are three use cases for COVID-19 testing delineated below.

Viral (Antigen) Testing Alone

Testing for the specific evidence of COVID-19 is a feasible way to both screen employees in mass returning to work as well as testing people who become symptomatic at work. This type of testing only reveals if the person has or does not have the virus at the same time as the test. It also does not predict if a person is immune or stratify them for future risk.

One use case for viral testing as a standalone screening mechanism is as follows:

·         All employees returning to work are screened using a symptom questionnaire

o   Those employees who are asymptomatic are eligible to return to work

o   People who are asymptomatic are told to inform their employer after they are symptom-free for 10 days

·         If an employee develops symptoms at work, that person is immediately removed from the workplace and sent home.

·         A viral antigen test for COVID-19 is conducted

o   If that test is negative, the person can return to work after being symptom free for 7 days

o   If that test is positive, a repeat antigen test can be conducted to assure he/she is no longer infective after being symptom free for 7 days

o   Further, if the test is positive for the evidence of COVID-19, exposed co-workers can be identified, removed from the workplace, and tested

  Antibody Testing Alone

Antibody testing is a test that looks for an immune response triggered after being exposed to a virus-like COVID-19. These tests have received bad press since some of the original FDA-cleared tests were not specific for COVID-19, and these tests were cross-reactive with other known coronaviruses that have been infecting people for years. The antibody tests that have remained FDA approved/cleared are specific to COVID-19; therefore, these tests are excellent markers for COVID-19 exposure.

Antibody testing is conducted on blood samples. If a sample is positive for antibodies, it shows the person was exposed to and had an immune response to COVID-19. Antibody tests that are solely positive for the type of antibodies that appear at the end of an infection (Ig G) may convey the person is COVID-19 immune. Ig G specific to certain makers in Hepatitis viruses is evidence of immunity; however, COVID-19 is a respiratory virus. Historically, influenza viruses tend to change (mutate) often leading to new outbreaks. Therefore, a person may be immune to COVID-19 but may be susceptible to COVID-21. People with mixed antibodies detected, still may be shedding virus thus, they are still considered infective.

A use case for antibody testing as a standalone screening program is as follows:

·         All employees returning to work are screened using a symptom questionnaire

o   Those employees who are asymptomatic are eligible to be tested

o   People who are asymptomatic can be tested for antibodies 14 days after resolution of symptoms

·         Antibody test results (conducted on employees who are symptom-free)

o   If the test is positive for Ig G only, the person can return to duty

o   If the test reveals a mixed antibody response, the person remains out of duty for an additional 14 days

o   A repeat antibody test is done to confirm only Ig G is present

·         If the test is negative, the person can return to duty

o   However, if respiratory symptoms arise, the person should be removed from duty until symptom-free for 7 days

o   Antibody testing is conducted prior to returning to work

 Comprehensive COVID-19 Testing Program

Leveraging the strengths of antibody and viral antigen testing provides employers the most robust testing solution for COVID-19. Antibody tests look for exposure, and antigen test looks for infectivity. Looking at staging these two tests affords a company a program that provides objective proof of immunity status and infectivity.

The use case for a blended comprehensive program looks something like this:

·         All employees returning to work are screened using a symptom questionnaire

o   Those employees who are asymptomatic are eligible to be tested

o   People who are asymptomatic can be tested for 14 days after resolution of symptoms

·         The initial test is an antibody test (conducted on employees who are symptom-free)

o   If the test is positive, an immediate viral antigen test is conducted

o   If the test is negative, the person can return to workplace duties

·         For those who are antibody positive

o   If the viral antigen test is negative this person can return to duty

o   This person is likely immune to COVID-19

·         If the viral antigen test is positive, the person can return to duty

o   This person is likely immune to COVID-19

·         If the viral antigen test is positive, the person should remain out of work for an additional 7 days

o   At that time, another antigen test can be ordered to confirm the person is no longer infective

 Any of the above types of testing is very objective and generally defensible. The type of program your organization may want is blessed with your company culture and risk mitigation strategy. With any screening program, the symptom questionnaire is the key. Having a mechanism to receive and review the questionnaire in a confidential manner is also important.

Final Considerations

Many individuals will want to continue practical social distancing, which will impact asking employees to stand in line to get tested. Many will not participate in large gatherings. Keep these concerns in mind when planning the distribution of questionnaires and testing. Management personnel should be employed to administer tests since the information they will be collecting must be maintained confidentially. Each must be properly trained.

Note that specific fields including healthcare may require more stringent testing and qualification.

 For more information on screening, please visit: www.securecheck360.com

Or mail us at [email protected]

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U.S. DEPARTMENT OF LABOR ISSUES FINAL RULE TO SIMPLIFY RETAIL OR SERVICE ESTABLISHMENT EXEMPTION

The U.S. Department of Labor announced a final rule to provide greater simplicity and flexibility to retail industry employers.

Provisions in the Fair Labor Standards Act (FLSA) allow employers in retail and service industries to exempt certain employees paid primarily on a commission basis from overtime.

Rule withdraws two provisions from the Department’s Wage and Hour Division regulations. The first listed industries that the Department previously viewed as having “no retail concept“, which made them ineligible to claim the exemption. The second listed industries that, in the Department’s view, “may be recognized as retail”, and were potentially eligible for the exemption. As the rule explains, some courts have questioned whether these lists lack any rational basis.

By withdrawing these two lists, establishments in industries that had been on the non-retail list may now assert that they have a retail concept and – if they meet the existing definition of retail and other criteria – may now qualify for the exemption. Insofar as these establishments were deterred from availing themselves of the exemption and its flexibilities, they may now do so if they qualify – including by having more flexibility to work with workers on commission-based pay arrangements. For these employers and workers, they could consider whether, for instance, more commission based pay is sensible.

Establishments in industries that were on the “may be” retail list may continue to assert they have a retail concept.

Moving forward, the Department will apply the same analysis to all establishments to determine whether they have a retail concept and qualify as retail or service establishments, promoting greater simplicity and flexibility for employers and workers alike.

This final rule unshackles job creators in the retail space who had previously been categorically excluded from the exemption without notice and comment”, said Wage and Hour Division Administrator Cheryl Stanton. “Permitting all retail employers to potentially qualify for this exemption can increase flexibility for businesses and workers. Eliminating confusion empowers job creators to grow their businesses, comply with the law and provide even more good jobs for American workers”.

The Department is issuing this rule without notice and comment, and it will take immediate effect. Neither notice and comment nor a delayed effective date are needed because both lists being withdrawn were interpretive regulations originally issued in 1961 without notice and comment or a delay.

Read the complete final rule here:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-10250.pdf

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U.S. DEPARTMENT OF LABOR ACTS TO HELP AMERICAN WORKERS AND EMPLOYERS DURING THE CORONAVIRUS PANDEMIC

Last week, the U.S. Department of Labor took a range of actions to aid American workers and employers as our nation combats the coronavirus (COVID-19) pandemic.

Reopening America’s Economy:

·         Statement by U.S. Secretary of Labor Eugene Scalia on being added to the white house coronavirus task force – “President Trump and Vice President Pence have delivered steadfast leadership throughout the fight against the pandemic. As a member of the White House Coronavirus Task Force, I look forward to help bring Americans back to work – safely”.

Keeping America’s Workplaces Safe and Healthy:

·         This week, OSHA continued its effort to provide detailed, industry-specific guidance for several industries that each face unique challenges in keeping workers safe from coronavirus. Among the documents released this week is guidance aimed at employers who have a duty to keep workers in nursing home and long-term care facilities safe from coronavirus exposure. OSHA’s compliance assistant tools are available to all employers to help protect workers from hazards.

·         The guidance documents released this week include:

o   Alert for Dental Industry Practitioners

o   Alert for Rideshare, Taxi and Car Service Workers

o   Alert for Retail Pharmacy Workers

o   Alert for Nursing Home and Long-Term care Facility Workers

Helping Unemployed Americans:

·         The U.S. Department of Labor Issues Guidance Announcing the Availability of $100 Million in Short-Time Compensation Grant Funds for States – “The short-time compensation programs are a vital resource for states in phased reopening”, said Assistant Secretary for Employment and Training John P. Pallasch. “By facilitating the expansion of an important tool states can utilize to help bring Americans back to work, we hope that states leverage these funds when developing their re-opening plans”.

·         The U.S. Department of Labor Issues Guidance and Reminders to States to Ensure Integrity of Unemployment Insurance Programs – The Department of Labor issued targeted guidance and reminders that provide states with detail regarding required integrity functions for their regular unemployment compensation programs, as well as those authorized by Pandemic Unemployment Assistance, Federal Pandemic Unemployment Compensation and Pandemic Emergency Unemployment Compensation of the Coronavirus Aid, Relief and Economic Security (CARES) Act, in UIPL 23-20. The guidance aims to help states guard against fraud and abuse of their unemployment insurance systems.

·         The U.S. Department of Labor provides Guidance on Pandemic Emergency Unemployment Compensation Program to States – The Department of Labor announced updated guidance, including FAQ’s, regarding the Pandemic Emergency Unemployment Compensation (PEUC) program authorized by CARES Act.

·         Temporary Changes to the Federal-State Extended Benefits (EB) Program – Unemployment Insurance Program Letter 24 – 20 provides guidance and responds to state inquiries related to the Federal – State Extended Benefits program and temporary changes to the program in accordance with the Families First Coronavirus Response Act.

·         Helping States with Technology Needs – Secretary Scalia has marshalled the resources of the U.S. Digital Service, the Department of Labor Office of the Chief Information Officer, the Office of Management and Budget, the Department of Labor office of Unemployment Insurance, and other organizations to assist States as they contend with unemployment insurance system IT issues arising from large claims volume and often out-dated computer systems. Together, these agencies have conducted outreach and provided assistance on performance and scalability of systems, procurement prioritization with vendors, call center consultation, and architecture reviews. Several states have already engaged the Department for help, and it remains available to help any state that would like its services.

Defending workers’ Rights to Paid leave

·         Wage and Hour Administrator Cheryl Stanton authored a blog post regarding the Families First Coronavirus Response Act (FFCRA). Administrator Stanton wrote how eligible employees working for covered employers can access paid leave under the FFCRA by checking with their employer, requesting the leave, and letting their employer know which of the qualifying conditions applies.

·         The U.S. Department of Labor to Offer Families First Coronavirus Response Act webinars to Educate Employees, Employers, state and Local Governments – The U.S. Department of Labor’s Wage and Hour Division will offer three webinars the week of May 18, 2020, for employees, employers, and State and Local governments in the division’s Southeast region to educate them on the Families First Coronavirus Response Act.

·         Indiana Trucking Company Pays Back Wages to Workers Denied Paid Sick Leave While Experiencing Coronavirus Symptoms and Seeking Diagnosis – A truck driver has received $3,017 in back wages after being denied emergency paid sick leave while he was experiencing coronavirus symptoms and seeking a medical diagnosis. The Wage and Hour Division found the employer violated the Emergency Paid Sick Leave Act provisions of the FFCRA.

·         West Texas Paving Company to Pay Back Wages to Worker Denied Paid sick Leave Despite Doctor’s Order for Coronavirus Quarantine – After an investigation by the Wage and Hour Division an employer will pay an employee $1,200 in back wages after failing to provide the employee paid sick leave under the newly passed Emergency Paid Sick Leave Act, part of the FFCRA.

·         Hawaii Food Retailer to Pay Back Wages to Employee Wrongly Denied Paid Sick Leave to Care for Child After Coronavirus Closes School – Wage and Hour Division investigators found an employer in violation of Emergency Paid Sick Leave Act provisions of the FFCRA due to the employer denying leave entitled to an employee. When advised of its obligations, the employer agreed to pay $800 in paid sick leave benefits to the employee as required. The employer also agreed to display the FFCRA poster, which details employer obligations and employee rights to coronavirus-related sick leave, until December 31, 2020.

·         Arizona Company to Pay Back Wages After Denying Paid Sick Leave to Employee Whose Doctor Ordered Coronavirus Quarantine – Wage and Hour Division investigators found an employer paid sick leave for only two of the 13 days the employee spent self-quarantined at the direction of his doctor after potential exposure to the virus.

Helping Dislocated Workers

·         The U.S. Department of Labor Awards Over $26 Million in Dislocated Worker Grants in Response to Coronavirus Public Health Emergency – The U.S. Department of Labor announced the award of seven Dislocated Worker Grants totalling $26,751,963 to help address the workforce-related impacts of the public health emergency related to coronavirus. This latest award follows three previous waves of funding, bringing the total amount awarded to states and territories to $198,221,958.

 During the coronavirus pandemic, the Department of Labor is focused on protecting the safety and health of American workers, assisting out state partners as they deliver traditional unemployment and expanded unemployment benefits under the CARES Act, ensuring Americans know their rights to new paid dick leave and expanded family and medical leave, providing guidance and assistance to employers, and carrying out the mission of the Department.

The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.

For more information, please visit:

https://www.dol.gov/newsroom/releases/osec/osec20200517

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COVID-19: What Should Employers Consider As They Draft a Return to Work Policy?

With the White House unveiling its guidelines for opening up America again, responsibility has been placed on states and local officials to assess their preparedness to stay ahead of the spread of COVID-19, and when ready, reopen their economies. In anticipation of resuming operations in the new normal, the White House has also charged employers to “develop and implement appropriate policies: to keep workers and patrons safe from contagion. In doing so, employers should weigh their legal obligations with emerging guidance from health authorities when building their COVID-19 return to work policy.

The Legal Standards

·         OSHA

The Occupational Safety and Health Act of 1970 (OSHA) was passed to help ensure safe and healthful working conditions for American workers. For workers whose jobs place them in direct and continuous contact with the novel coronavirus, OSHA has established standards concerning the use of personal proactive equipment, like gloves, masks, and face shields. For all employers, the Act’s “General Duty Clause” requires that employers provide “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to its employees”.

Seeing as the transmission of the coronavirus generally occurs via respiratory means from close personal contact with others, employers in the U.S. have a duty to devise and implement a plan that keeps their workers safe from the disease. However, in doing so, employers must act in a way that is well-reasoned in its approach and not discriminatory in its application.

·         EEOC & ADA

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing anti-discrimination laws affecting the workplace, including the Americans with Disabilities Act (ADA). The ADA prohibits employers, in part, from discriminating against workers with specific health ailments that substantially limit activities that are considered fundamental to life such as speech, sight, mobility, and the ability to work and care for oneself. To curb discrimination, the ADA prohibits employers from engaging in medical examinations of its workers unless that action is “job-related and consistent with business necessity”. However, in times of a pandemic, while ADA rules continue to apply, they must not interfere with an employer’s ability to fight COVID-19 per guidance from health authorities, including the Center for Disease Control and Prevention (CDC).

 Guidance towards a Policy

The CDC has issued guidance that may assist in the prevention of exposure to COVID-19 in a non-healthcare workplace setting. The CDC’s advice intersects with EEOC and OSHA oversight. It is aimed at providing employers with actionable information that they can use as they develop and implement policies as recommended by the White House for opening America.

Policy considerations include:

·         Flattening the curve

The CDC recommends that employers create a culture that actively encourages and supports a policy requesting that sick workers stay at home. Workers who exhibit a respiratory illness while at work should be separated from all other workers and sent home. Employers should be flexible with sick-time, accrued time off or other out of office policies and allow workers to use any type of leave available. Workers who have been advised by a healthcare practitioner to stay at home may be subject to a leave law; workers who stay home solely at the employer’s guidance may not be. Therefore, employers should proceed with caution when accessing an out of office request and review their policy against Federal and State Leave laws.

Employers should also modify the workplace to help reduce COVID-19 contamination. OSHA guidance includes eliminating communal desks, or other shared work equipment and tools when possible. Social distancing measures should also be implemented to allow workers to remain six feet apart. Block scheduling, delayed starts, and telework should be encouraged to reduce overcrowding in the workplace.

·         Maintain a healthy workforce

The EEOC has provided guidance that permits testing and medical exams pursuant to the COVID-19 pandemic. However, that guidance differs depending on pre-hire or post-hire nature of relationship with the worker. Employers should take heed to revise their pre-hire policies and return to work policies accordingly to help ensure a safe workplace.

Before the start of employment, but after a conditional job offer has been made, applicants for employment may be screened for symptoms of COVID-19. If an employer proceeds with screening qualified applicants, it should do so for all new workers performing the same role. Employers may delay the start of workers exhibiting COVID-19 symptoms or may withdraw the job offer altogether if they are not able to reasonably accommodate the need for a later start date.

Once employed as part of an employer’s return to work strategy, employers may mandate COVID-19 testing before a worker is permitted to enter the workplace. Testing options include antigen testing to access active COVID-19 infection, antibody testing to assess prior COVID-19 exposure, and body temperature screening. The EEOC suggests that any examination administered be reasonably accurate and reliable. As such, employers will want to engage medical professionals and their legal counsel as they access testing that meets their workplace needs.

If a worker is voluntarily disclosing or is otherwise diagnosed with COVID-19 colleagues within close proximity and frequent contact with the worker should be advised of their possible exposure. This requires the implementation of contact-tracing protocols to access not only human interaction but sharing of work equipment in the 48 hours before diagnosis. In most circumstances, employers should not identify the specific diagnosed worker. They must treat the worker’s diagnosis and related medical information as a confidential medical record in compliance with the ADA’s requirements. Only if necessary, the EEOC permits identification by the name of a COVID-19 positive worker that has been placed on a third-party’s job site, or to notify the public health authority.

·         Seeking accommodation

The CDC has identified older adults and individuals with underlying severe medical conditions as being at an elevated risk for serious illness from COVID-19. As such, employers should engage in an interactive discussion concerning accommodation if a worker refuses to return work as a result of their risk of severe illness stemming from COVID-19. Typically an employer will require documentation from a healthcare provider to support the accommodation request. However, because of COVID-19, it may be impractical, if not burdensome, to do so. Therefore, employers should consider a flexible approach when assessing the workers accommodation request.

Employers should also expect to encounter some workers who are not at a higher risk of complications from COVID-19 but who are fearful of returning to the workplace because of possible exposure to COVID-19. If a worker is a caretaker for others, in particular the ill or infirm, or in some cases children, that worker may be entitled to protected time off and pay. In these cases, employers must engage in conversation concerning the legitimacy of the worker’s fears in light of the policy and standards implemented by the employer to help combat exposure to COVID-19, and if necessary, reasonably accommodate the workers need to remain out of the workplace.

·         Addressing state requirements

Several states have issued directives that either provide a general framework for reopening or have established specific protocols by industry required to resume operations. Employers must be mindful of these edicts as they develop their COVID-19 return to work policies.

For example, employers in Indiana, Kentucky, and Vermont must all establish processes to screen employees for COVID-19 before returning to work. In some cases, lab-confirmed COVID-19 testing may be required.

Other states have developed health screening templates for completion and review before a worker’s shift. While Colorado does not mandate the use of the form but encourages employers to adopt it, Delaware requires that high-risk businesses like medical care providers, childcare workers, and residential facilities or shelter operators are screened against the state’s questionnaire.

Some states have also issued requirements aimed at specific businesses like Georgia, which has established parameters for reopening gyms and fitness Centers that includes the screening of workers and patrons of the facility. Many states have also established recommended protocols for screening food service Workers and retailers, such as Arkansas, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, and Washington D.C., amongst others.

In some states, Local Governments have enacted reopening measures that supplement or supersede a state’s directive. For example, while some state governments have permitted reopening, some municipalities have chosen to slow their re-openings. And some cities have gone further to restrict workplaces to 50% occupancy or require that employers continue to maintain telework policies when applicable.

Closing Thoughts

As employers prepare to reopen their workplaces, several legal issues are in play. Employers should devise COVID-19 return to work policies per CDC and OSHA guidance that work towards reducing the spread of COVID-19 while maintaining healthy work environments and act by following State and Local requirements. Most importantly, those policies should be drafted and implemented in a non-discriminatory manner with the support of legal counsel.

For more information, please visit www.securecheck360.com

Or mail us at [email protected]

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Things Employers Should Consider in COVID-19 While Adapting Their Background Screening Process

Businesses continue to operate despite the global reach of COVID-19. And while some industries are seeing a momentary downturn in hiring, others are experiencing a seemingly insatiable need for talent. From workers supporting the supply chain to healthcare professionals on the frontlines of the battle against COVID-19, the need to identify and on-board workers is more critical now than ever.

And for many organizations that are experiencing a lull in hiring, the shift to remote work presents new risks that may have been previously unconsidered. Workers who are out of sight should not be out of mind.

Why Screen?

Employers have a legal duty to ensure that a prospective worker does not present to the organization or its clients. Negligent hiring occurs when employers fail to act reasonably when hiring an individual and that individual subsequently harms someone else. Once a candidate is hired, employers are responsible for supervising their employees and ensuring that a worker’s retention does not present probable harm to the organization or its clients. Employers who fall below their duty of care and negligent hire or retain a worker could be liable for that worker’s bad acts.

Background screening is typically divided into three major components: public records searches, such as a review of criminal and civil records, verifications, like confirming employment and education qualifications, and drug screening. Each segment is affected by the COVID-19 pandemic differently.

Public records

As of this report, more than 60% of courts in the U.S. are reporting “open”, meaning there is no indication or notice of a change in the court’s standard process for   fulfilling public records search requests. Approximately 30% of courts report having “limited results” available, with around 10% of courts having closed their operations.

The Fair Credit Reporting Act (FCRA) regulates, in part, the process by which employer’s request background checks on prospective and current employee’s, and the process by which background check vendors, as consumer reporting agencies, fulfil those requests. The FCRA places an obligation on background check vendors to ensure the information reported is both complete and up to date. If a court is closed, or if clerks are unavailable, then those verifications cannot be made, even if a court has an automated system. Some information obtained by automated or online means needs to be validated with a person at the court. If clerks are not working, then courts’ repositories may not be updated, which is why background check vendors will generally avoid reporting information from courts who do not have staff available to answer questions.

Verifications

Many large employers utilize automated methods for conducting employment verifications. So long as these employers continue to contribute their employment records to these repositories, and those repositories remain operative, the majority of employment verifications are unaffected by COVID-19 closures. However, small and mid-sized employers that utilize traditional methods for employment are unavailable for verification. In these cases, candidates for employment can provide prospective employers with evidence of their previous work history such as a W-2 or pay stubs. Still, an employer should weigh the risk of accepting documents that are not authenticated. Also, several jurisdictions throughout the U.S. have passed laws that prohibit an employer’s inquiry into or verification of candidate’s compensation history. Employers should advise candidates to redact their former compensation from any supplied documents, and generally should not consider any compensation history voluntarily provided to set the candidate’s future salary.

Educational institutions have been severely affected by the pandemic. Much like employment, many large or prominent institutions offering higher education degrees utilize automated methods for degree verification. Smaller institutions and those bodies offering lower degrees are mostly unavailable for degree verification. Because transcripts and diplomas are easily falsified and widely cannot be authenticated due to school closures, employers should not accept any document submitted by candidates for education verification at their face value.

Drug Screening

Several drug screening options remain for employers despite COVID-19. Most large patient service centers like Quest and LabCorp are operating for collections, and are not testing for COVID-19, which reduces the risk of exposure to the contagion. Similarly, some clinics offering specimen collection services provide a text-ahead service. This service allows the candidate to make appointments online and provide a mobile number where they will be reached when technician is available for testing enabling the candidate to self-isolate in their car instead of in the waiting room.

Employers who maintain a physical presence in an office, warehouse, retail space, or other location may consider oral fluid testing, using oral fluid, a candidate can report to the workplace where a quick swab can test for the recent use of cocaine, amphetamine, opiates, phencyclidine, and cannabinoids (THC).

Screening options amid COVID-19

Truncated Screening

The scope of background screening differs by industry and positions. Some industries including energy, finance, healthcare, and transportation must meet specific minimum background check requirements as identified within the regulations that govern them. Other employers who are service providers may be contractually obligated to undergo screening as defined within their agreements with their clients. And then there are those employers who are neither regulated nor subject to contractual screening requirements. Employers in the group are expected to conduct screenings that are reasonably aligned with others in their industry to not be negligent in their hiring or retention practices.

Amid the COVID-19 pandemic, employers may be considering revising their screening programs to accelerate time to hire, including temporarily waiving criminal checks. But doing so comes with risk, not only of negligent hiring or negligent retention but of justifying the validity of criminal checks in the near future.

In order to defend against discriminatory hiring practices, Title VII of the Civil Rights Act of 1964 requires, in part, that employers demonstrate that their practices are “job related to the position in question and consistent with business necessity”. If during the pandemic, an employer chooses to suspend criminal checks and reinstates them in the future, those practices could be challenged as not being job related nor consistent with business necessity since the employer was able to hire without the checks for some time.

While streamlining a background check program is worthwhile, truncating it may not provide employers with the results that benefit their organization in the long-term. Instead, employers should adapt their programs to align with the data available in the current COVID-19 environment and do so in a way that maintains their compliance obligations under the Fair Credit Reporting Act and any applicable laws and regulations. Novel solutions, such as social media screening, while never a replacement for criminal searches or other verifications, can provide employers with valuable insights into a candidate’s character, untraditional sources can help to close the gap between unavailable traditional sources for screening, and offer new ways to build a holistic picture of a candidate’s fitness to hire.

Post-employment Screening

Employers typically condition employment upon the successful completion of a pre-hire background check. However, the definition of a complete check has shifted in the COVID-19 environment. Employers are beginning to recognize that while background screening is still entirely possible as many courts, employers, and educational institutions continue to operate, others are offline for an indefinite period. As such, many employers chose to hire candidates based on the information available to them now, and are reserving the right to conduct additional background checks post-hire, once courts, schools, and other sources become available.

While post-employment screening is an option for employers, they should recognize their compliance obligations. The FCRA and the other state laws require that employers provide disclosure to and receive authorization from individuals undergoing background screening for employment purposes.

Employers must review the background check disclosures that they provided to their employees who have undergone background checks and access if those disclosures provided for the option for future background checks over the term of employment. While the FTC has opined that on-going authorization would be valid in most jurisdictions, in California, the validity of continuing authorization is unclear. Employers in California would generally not want to rely on the on-going authorization even if the language was in the authorization form. Therefore, it is usually viewed as a best practice to notify employees and obtain a new authorization whenever a background check is requested.

In addition, employers who run post-employment background checks who may decide to negatively affect a workers employment, based in whole or in part on the results of the background check, must follow the FCRA’s pre-adverse process. Employers are required to provide the employee with a copy of their background report, a summary of their rights under the FCRA and applicable state laws, and give the employee a reasonable opportunity to dispute the accuracy or completeness of the background report with the background check vendor. And then, after the employee has had a reasonable period in which to initiate a dispute, if an employer decides to terminate that individual or otherwise negatively affect their employment, the employer will need to send out an adverse action notice advising the candidate of their rights under the FCRA.

Parting Thoughts

While COVID-19 has changed the way employers approach hiring, employers should not be dissuaded by time-to-hire from protecting the safety and security of their workforce through effective background checking. Like all businesses, the background screening industry has been impacted by COVID-19. But in this age of the new and novel, adapting to challenges is essential for survival. Employers should not abandon their hiring principles and sacrifice their culture amid this crisis. Instead, they should access the current environment affecting their ability to hire and evolve to remain successful.

For more information please visit, www.securecheck360.com

Or mail us [email protected]

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Methods to Help Your Remote Employees during a Crisis

With many Americans now working from home, employers are faced with new challenges, helping to support their staff as they adapt to this unusual situation. As the COVID-19 crisis grows, more employees could find themselves struggling to adjust. They could have financial struggles as family members lose jobs or even mental health concerns as the pandemic looms. By helping your employees, you are not only making their lives easier but may also be helping your company survive.

Create an Action Plan

Since this is a unique situation for your employees — as it is for all of us — finding a new “normal” might be difficult. To formalize a process to weather the situation, design an action plan to get your company back up to full productivity. Do not assume that your staff will automatically know what steps to take to continue being product while coping. Create detailed steps for your employees to help them understand how and when changes will be made and why it’s essential to follow these new processes.

To create a united remote workforce, you might need to use standard working hours so that all employees are online and available at the same time. Setting specific work hours can also improve productivity and allows for better collaboration between departments. When working in a physical location is no longer a viable option, it’s essential that you create the best possible virtual environment for your staff.

If you intend to use video calls and meetings, consider establishing some best practices to promote proper etiquette. When your team is required to use a new channel of communication, it is easy for it to be misused. By publishing rules on how to best use video conferencing, you can cut down on employee confusion and increase the rate of adaption.

Communicate Frequently

With your employees working from home, it is easy for them to feel cut off from the rest of your organization. Your staff can no longer rely on each other in the same they did before. To facilitate a closer relationship between staff and management, you should be communicating with your employees regularly or very often.

This is a time of confusion, and employees could be feeling stressed and anxious about current events. Your communications need to be a voice of reason and honesty for your staff. Having a consistent message repeated often can ease some of the uncertainty around your employees’ new work situation.

To ensure that all of your staff are receiving and understanding your communications, you should take advantage of multiple channels. If you have a company-wide video conference, consider sending a follow-up message to all attendees. These emails can sum up the discussion and open the floor for any questions that might not have been asked. Some employees can be intimidated by video calls and might have a hard time speaking up. By allowing more than one way of communication, your staff can get a second chance to discuss concerns or questions.

While it is important to talk about work-related issues during meetings, it is also crucial to check up on your employees’ personal situation. Ask about their home struggles and see if there are any resources available from them to use. Show your employees you care about them as people, not just as workers. This display of kindness can go a long way in boosting morale during the coronavirus.

Offer Assistance

The economic state of our country is affecting millions of people, and your employees could be facing difficulties at home. As an employer, promoting a culture of financial literacy can help your employees better educate themselves and prepare for the future.

Even without a financial crisis, some Americans live paycheck to paycheck. It is important to encourage employees to use all of their available resources to help them adapt. Today, financial institutions offer many resources that can assist managers in managing their money. By setting up a checking account with early direct deposits, employees can have access to their cash earlier than usual. This means less time waiting between paychecks and the chance to pay bills quicker.

For employees new to the professional world, you could even offer to host financial literacy classes. Topics including budgeting, planning for retirement, or paying off debt can help employees understand the importance of managing their money efficiently, especially in times of hardship. The financial well-being of your staff also means less stress and higher productivity for your company.

If you have employees dealing with a personal catastrophe, you can go even farther to help as a company by establishing an Employee Assistance Fund (EAF). This type of program works by you and your employees contributing donations directly to the fund. Then employees in need can apply for assistance when necessary. There are many ways to set up an EAF, and depending on how you want the fund to be managed, your organization will have to meet legal qualifications. Once you have your EAF program set up, you should ensure that all employees know that this fund exists for donations and applications. An EAF can also be used for multiple disasters besides pandemics. Employees struggling with natural disasters, financial hardships, or health emergencies could benefit from receiving relief from your company’s EAF.

Take Care of Your Customers

Just like your employees, your customers could also be struggling with their own set of problems. To assist your customer-facing staff, consider helping your consumers by offering special incentives, flexible payment plans, or even discounts for specific products. If your business operations are changing, take the time to communicate with your customers and let them know if your hours are different or if product deliveries could be delayed. No matter how you communicate with your customers, offering empathy in this challenging situation can prove mutually beneficial.

Recovery Takes Time

Whether you are a large corporation or a small business, it is essential to look towards the future and prepare for the end of the crisis. This situation is not permanent, and once it is over, you can take time to rebuild your company. Just keep in mind that recovery will not be instantaneous, instead, it could be changed forever as a result of COVID-19. Employees could still require support even after they return to the office. Take the time to ensure that your staff is safe and healthy since they are your most valuable resource.

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DOL Updates Model COBRA Notices with New Medicare Information

The U.S. Department of Labor on Friday rolled out new model notice forms for employers looking to comply with COBRA’s notice requirements, adding information explaining why enrolling in Medicare might be a better option for some and posting a new FAQ to its website.

According to the agency’s statement, the new model notices let recipients know that there could be advantages to enrolling in Medicare before electing to continue their health care coverage through the Consolidated Omnibus Budget Reconciliation Act, or to choosing Medicare coverage as an alternative to COBRA altogether.

The new notices also inform people who are eligible for benefits under both laws that choosing COBRA coverage first can have an impact on their enrolment in Medicare, the agency stated.

U.S. Secretary of Labor Eugene Scalia said in the statement that the change was prompted by a letter from U.S. Reps. Kevin Brady, (R-Texas); Virginia Foxx, R-N_C; Richard Neal, (D-MA),; Frank Pallone, (D-N-J),; Bobby Scott, (D-VA); and Greg Walde, (R-OR).

“The information we are providing will help Medicare-eligible Americans make key decisions regarding their healthcare coverage,” Scalia said. “As many individuals face economic hardship related to coronavirus, the Department will continue to inform workers and help them avoid incurring unnecessary health costs.”

In the frequently asked questions issued by the Labor Department’s Employee Benefits Security Administration, the agency reiterated that employers that use the model notices will be considered in compliance with COBRA’s notice requirements.

The FAQ also provides guidance on how Medicare and COBRA interact, noting that those who do not initially enrol in Medicare because they are still employed have eight months to do so starting the month after either their employment on their group health plan ends.

Choosing to first elect COBRA can result in a late payment or gap in coverage if someone later changes their mind and decides they want Medicare Part B, the FAQ said. And if someone chooses Medicare Part A or B after previously choosing COBRA, the plan might terminate their continuation coverage.

The agency further pointed out in the FAQ that if someone is enrolled in both COBRA and Medicare, Medicare will usually pay first.

A number of large companies recently have found themselves facing lawsuits contending that they deviated from the DOL’s model notice form for their own benefit in violation of the Employee Retirement Income Security Act, as amended by COBRA.

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New DOL Benefit Plan Guidance Embraces E-Disclosure

The U.S. Department of Labor’s new guidance on employee benefit plans and the novel coronavirus pandemic hints that the agency is accelerating its embrace on electronic disclosures for retirement savers, attorney says,

Issued Tuesday, the guidance assures benefit plan administrators they will not be penalized for sending information to plan participants electronically. The guidance arrives less than two weeks after the DOL sent a long anticipated regulation on electronic disclosures of pension plan information to the White House for approval.

That regulation would allow pension plan administrators to send disclosures required under the Employee Retirement Income Security Act to participants by email rather than through the mail. Such a move could save employers millions, the DOL has said.

Tuesday’s guidance released by the DOL’s benefits division and meant to ease restrictions related to ERISA plans during the pandemic – suggests the DOL is forging ahead with allowing electronic disclosures, said Elizabeth S. Goldberg, a benefit associate at Morgan Lewis & Bockius LLP.

“We know that the electronic disclosure rule is at [the White House’s] Office of Management and Budget. We hope that this moves the ball in the right direction on electronic communications,” Goldberg said.

Kevin Walsh, a principal at Groom Law Group, said the language on electronic delivery jumped out at him right away as he read the DOL’s new guidance. In particular, he homed in on the section where the agency named “email, text messages and continuous-access websites” as potential methods of delivering plan information to participants electronically.

“To me, it makes me think we could see those types of communications in the new rule,” Walsh said.

Goldberg said the e-delivery guidance is a welcome development, because it relieves benefit plan administrators of the duty to send mass mailings during a pandemic.

“It’s very helpful to see this relief is there, because that’s a question I’ve gotten a lot from Clients the logistics right now of performing mailing functions can be challenging,” Goldberg said- ”Shops that clients go to for mass mailings are not open.”

In addition to authorizing e-delivery, Tuesday’s guidance gives laid-off and furloughed workers more time to sign up for health care coverage and plan officials more time to file paperwork. The DOL intends for the deadline extensions to provide “flexibility” during the “challenging time” for workers and companies, Preston Rutledge, the head of DOL’s Employee Benefits Security Administration, said in a statement Tuesday.

Jonathan Zimmerman, a benefits partner at Morgan Lewis, said the deadline extensions are helpful but the people should keep in mind that the DOL isn’t the only agency that enforces deadlines related to employee benefit plans.

Some types of plans – such as cafeteria plans, which let participants fund benefits on a pre-tax basis – are overseen by the Internal Revenue Service.

“The DOL is extending deadlines for the participants to take certain actions, but these don’t extend to flexibility from the IRS’ standpoint,” Zimmerman said.

Because of this, benefit plan sponsors should keep an eye on congress and the IRS to see if further relief is issued, Zimmerman said.

Also on Tuesday, the DOL issued a set of frequently asked questions directed at workers with questions about their health insurance coverage. The questrio9ns are intended tro9 help workers impacted by the coronavirus outbreak “understand their rights and responsibilities” under Title I of ERISA, the EBSA said.

The FAQ’s delve into questions such as “If my place of employment temporarily closes because of the COVID-19 outbreak, am I still covered by my employer’s group health plan?”

“To me, these FAQ’s show a continuation of DOL’s reach-out efforts to the participant community,” Walsh said. “We talk a lot about fiduciaries and plan sponsors, but these FAQs go at the concerns that an individual participant might have.”

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DOL Issues New Guidance on Unemployment Expansion

The U.S. Department of Labor has issued fresh guidance to states grappling with a recent federal unemployment supplement that extended emergency jobless benefits to “gig” workers and others who are out of work due to pandemic, but cannot collect under existing laws.

Employment and Training Administration head John Pallasch’s Monday letter to state unemployment administrators summarizes the Pandemic Unemployment Assistance and includes a lengthy questions and answers section explaining who is eligible, how states should process claims, how much workers can collect and other facets of the program.

For example, a worker who previously exhausted their benefits and has not earned enough money to re-establish them can collect if they cannot work because of the pandemic, while workers who have lost their jobs and refuse employers’ calls to return to work cannot, Pallasch stated.

Monday guidance is the latest in a series of unemployment insurance program letter the ETA has sent states to help them respond to an unprecedented surge in benefits claims during the pandemic. The agency has issued some guidance on existing law, but has mostly focused on the Coronavirus, Aid, Relief, and the Economic Security Act, which created the PUA and made other changes to bolster the unemployment system.

Unemployment benefits are generally only available to workers who are classified as “employees” for payroll purposes and have earned a certain amount of money over a certain period of time, with the specifics varying by state. The UPA extends benefits to independent contractors, the self-employed and others who could not otherwise collect, though workers and states alike have struggled to grasp its mechanics.

The new guidance answers dozens of questions DOL officials fielded in an April 8 webinar with the state unemployment administrators, dividing them into several categories.

A little over a third of question concerns PUA eligibility. Among other thing, Pallasch said workers who do not qualify for regular benefits because they have taken unpaid medical leave may be able to collect if they took leave for a reasons related to the virus, as can workers who cannot work because they are the primary caregiver of a child whose school has closed. But those workers cannot keep collecting after the school year ends “absent some other qualifying circumstances,” Pallasch stated.

A section discussing how to administer claims directs states to review denials dating back to the PUA’s January 27th, retroactive effective date to identify workers who may be eligible under the new law. If states identify newly eligible workers, they must alert them and explain how to file a new claim. The guidance tackles several other questions, including whether states can convert claims ineligible workers filed under regular laws to PUA claims, and how to handle claims for workers who live in one state but are self-employed in another.

Workers eligible for PUA assistance can collect a minimum weekly benefit based around their states average pay-out under existing laws, though they can get more depending on their earnings. Tuesday’s letter directs states to provide workers who cannot prove their earnings at least the minimum, among other guidance.

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Employment Screening and FCRA Addressed by 9th Circuit Case

Over the past several years, there have been many class actions across the country from plaintiff’s counsel regarding FCRA disclosures being provided to candidates as a standalone document. On April 24, 2020, employers and CRA’s had a win in the 9th Circuit, in defence of some FCRA notice cases.

The 9th Circuit upheld the dismissal of an FCRA case that argued that an employer violates the FCRA:

(1)   By providing an FCRA disclosure simultaneously with other employment materials.

(2)   By failing to place a FCRA authorization on a standalone document.

In this particular case, the disclosure appeared on a separate sheet of paper, and the authorization appeared at the end of the application and “included other notices, waivers, and agreements unrelated to acquiring consumer reports.”

The 9th Circuit rejected this argument by saying that Plaintiff’s argument sketches the statutes requirement beyond the limits of law and common sense. It is true that FCRA requires “that a disclosure form contain nothing more than the disclosure itself,” Walker v. Fred Meyer, Inc., No. 18-35592, 2020 WL 1316691, at *5 (9th Cir. Mar, 20, 2020), but no authority suggests that a disclosure must be distinct in time, as well. [Employer’s] disclosure may have been provided alongside other application materials, but it appeared in a standalone document- precisely what FCRA requires.

The 9th Circuit also took additional step of noting that the disclosure was “clear and conspicuous” and even included a copy of the disclosure in the opinion.

The disclosure is similarly “clear and conspicuous,” which we have interpreted in the context of FCRA to mean a “reasonably understandable form” that is readily noticeable to consumer.” 15 U.S.C. § 1681b (b)(2)(A)(i); Gilberg, 913 F.3d at 1176 (citations omitted). The disclosure, entitled “FAIR CREDIT REPORTING ACT DISCLOSURE STATEMENT,” explains in plain language that, as required by law, the applicant is “informed that reports verifying your previous employment, previous drug and alcohol test results, and your driving record may be obtained on you for employment purposes.” Aside from the notice, the disclosure contains nothing but the employer logos and signature lines.

Want to read the entire 9th Circuit Case opinion, visit here: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/24/18-55804.pdf

Data facts are committing and bringing our clients real-time news that affects their hiring processes. Be in-touch to stay up-to-date on trends, on-going legislation, and upcoming requirements.

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How to Maintain a Robust Workforce during a Pandemic

Healthcare centers and other essential businesses looking to maintain operations, as well as restaurants and retailers eyeing the quickest possible comeback, are running up against a tough question: How do we maintain staffing in a pandemic?

Many workers are understandably reluctant to risk their health for a pay-check, but their on-going wariness about reporting to work has put their employers in a bind, attorneys grappling with this.

Businesses can entice workers with hazard pay, take a hard line and let workers go, or step up safety measures to assuage their fears and limit their exposure to COVID-19. But exactly what an individual employer should do – and whether it will work – depends on their unique circumstances. Just to give employers the lay of the land and discuss the situation and what they may be willing to do or not to do. They are just not a good answer here for some.

The rapid spread of the coronavirus has forced many employers to close, either because customers stopped showing up or because they are subject to government shutdown orders. But healthcare centers, grocery stores, and other essential businesses have stayed open, and many have struggled to get their workers to show.

At first, businesses were willing to accommodate their worker’s concerns. Many told workers who were afraid to report to paid time off or take unpaid leave. But as the crisis drags on, this arrangement has led to unworkable staff shortages.

Several health care employers that are struggling to maintain staffing. Surprisingly, these clients have not had trouble getting workers to report to the intensive care unit or emergency room, where workers come into direct contact with the virus. Rather, the most reluctant workers have been those hospitals have redeployed from other, closed areas to answer phones or take blood samples in busier units. Likewise, laundry, cafeteria, and other support workers have been wary about coming in during the crisis.

·         These employers have tried to limit direct patient contact, provided protective equipment, or shifted hours so workers can avoid the subway during rush hours. But many workers still avoid coming in.

·         These employers right now have been patient for past weeks and are at their wits’ end at this point- they do not have many options left.

·         The employers looking to bring back workers they laid off or furloughed earlier in the crisis may also face difficulties.

·         Low wage service workers often make much of their money through tips, which have dwindled during the pandemic, and the recent emergency aid package has further altered the risk-benefit analysis for workers.

 The Coronavirus Aid, Relief, and Economic Security Act provide $600 per week to workers that have lost their jobs because of the pandemic. Combined with their regular benefits, which are about half of their salaries in many states, workers earning at or near the minimum wage may have seen their incomes increased as double. All this makes returning to low-paid work for $7.25 an hour, employees and employers both are in a kind of tough spot together.

·         Employers have several options to get employees back to work, but none of them are sure.

·         Staffing and human resource professionals advising clients to sit down with reluctant workers to hear their concerns and allay their fears. But, if this does not work out, they may have no choice but to fire or furlough them and find replacements. Unfortunately, many unemployed people that we have not heard that many employers are having difficulty finding replacement workers.

·         These options pose some risks, however, not only can this hurt the employer’s relationship with the employee, the worker may file a complaint with the Occupational Safety and Health Administration or being a lawsuit. To one extend the employers are following the government’s coronavirus safety guidelines, it probably will not be penalized. Still, most would rather not face an OSHA probe.

·         If replacement workers are not readily available – or if employers would prefer to avoid the risks that come with letting workers go – they can offer so-called hazard pay to entice workers back in. But that is only viable if the employer has extra money. It can also be a slippery slope.

 Employers can also encourage workers to come in by making operational changes to reduce their exposure to the virus. Rather than blindly deploying workers to house calls, some companies have started calling ahead to see if anyone is sick. Instead of announcing their arrival by knocking on customer doors, technicians will call or text. Companies may ask that only one member of the household interacts with the technician and those others wait in a separate area of the house. And if the technician must be face-to-face with a customer, they do so at a preferred distance.

By taking such measures, you are being as reasonable and as careful as possible to make sure you are not exposing this employee unnecessary. Companies that are struggling to bring back laid-off workers should explore “work-share programs”. About half of the states have these programs, which let workers collect unemployment benefits while on shortened schedules.

An employer should be mindful of their affirmative obligations to protect certain workers under disability discrimination laws. If a worker has a disability that makes them susceptible to COVID-19, the employer must provide a “reasonable accommodation” for their condition, to the extent that is feasible. Maybe unpaid leave is a reasonable accommodation for that person, or maybe it is just a matter of surrounding that person in Plexiglas or moving them to a different part of the building- it depends.

Businesses can be at risk for the activities of an unexpected worker similarly it may be obligated for the activities of ordinary representatives. Employers are required to know whether and when an individual from their all-encompassing workforce is inadequate or any case unfit for business.

Millions of U.S. workers are now filing for unemployment; the pool of workers is increasing. Ensuring that you are staffing for the most essential positions first is critical to success. By having a clear understanding of the workers that are needed and their job duties, employers can streamline their employee screening process.

We provide the most accurate, customized, and expeditious background screening services. We focus on essential personnel and talent selection processes, done in accordance with existing Federal and State laws and better business practices. Through expert guidance and support, we will empower our clients to make their best business decisions.

For more details, reach us at www.securecheck360.com

Mail – [email protected] or call us – 855-955-4777

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Multiple Ways COVID-19 Will Change Workforce Forever

When the novel coronavirus pandemic begins to abate, employees may return to workplaces that look radically different from what they remember, with companies learning more heavily on telework, safety gear like masks becoming more heavily on telework, safety gear like masks becoming more ubiquitous and offices getting redesigned to spread people out.

The rapid spread of COVID-19, the disease caused by the new coronavirus that originated in central China late last year, has brought chaos to the U.S. workplace, with a source of businesses being forced to close and others having to shift their workers to being remote employees.

When the time comes for businesses to start bringing workers back, the workplace they return to could be permanently altered by the virus, which taught employers numerous lessons that will be top of mind during future decisions.

Telework on the Rise

Ø  Of all the adjustments that businesses have had to make in response to the pandemic, the one most likely to stick – and potentially explode – in a post- COVID -19 globally is businesses’ increased use of remote work.

Ø  Many employers are going to think differently about telecommunicating operations and the feasibility of them going forward once we come out of the pandemic – stated by Kris Meade, chair of Crowell & Moring LLP’s labor and employment practice. It has great potential to be truly transformative of the workplace, particularly professional workplaces.

Ø  While many companies already had telework programs in place before COVID-19, others have shied away from it for a variety of reasons, such as the cost of technology, skepticism about whether workers would remain productive and concerns that many jobs were not conducive to teleworking.

Ø  But with their hand forced by the virus, many businesses that harbored doubt found instead that work could still be done efficiently by people working from home, potentially making the cost savings that can accompany a broad embrace of telework more attractive.

Ø  They are learning that a good deal of work can be done effectively by working remotely. Few of the employers discussing to reduce their company bricks and mortar footprint once they return to normal and thereby reduce our operating expenses taking ahead. Service firms as well as the admin components of manufacturing, take a hard look at working remotely and they may make some permanent changes.

Ø  If there is more remote work, employers will also have to revise their handbook policies to include related items such as data security and details about what hour’s employees are expected to work and they are expected to be available.

Ø  There will be sections on remote work if that becomes more prevalent.

Social Distancing Here to Stay

Ø  As public health officials have urged people to keep at least 6 feet away from others to protect against coronavirus infection, the concept of social distancing has become ingrained in people’s consciousness.

Ø  Even after the risks associated with COVID-19 subside, many businesses may keep the contours of social distancing in place.

Ø  Employers’ approach to social distancing will depend heavily on the business industries as well as on guidance from agencies like the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration.

Ø  There is going to be both the legal aspect of social distancing-whatever OSHA or [other] regulators require-and there is also going to be the social aspect. For instance, are people going to rush back psychologically and go sit in a crowded restaurant?

 Fresh Office Design

Ø  One way in which the focus on social distancing may yield concrete changes is in the way employers structure their physical work sites, particularly if they have an open office design that is intended to promote interaction between the people.

Ø  Employers’ will focus on changes, where they can, spread the workforce out physically. Workstations that are designed differently, spaced out differently, and the layout of the businesses will be different. These will probably a long term scene.

Ø  Through online resources, it has been noted that there is an increase in telework arrangements after the pandemic. This implies that there are fewer people that a company needs to fit into a physical location. Altogether means businesses could hold less physical space and cut down on the costs associated with maintaining it.

 More Health Precautions

Ø  One of the things that make the COVID-19 pandemic so chaotic for many employers is the fact that many had never given much thought to an event that would cause such a widespread shutdown. This forced employers to make last-minute decisions as public health officials started pulling down the curtains on business operations.

Ø  As recent experience in the employer’s views, they will likely prepare to react faster should the second wave of COVID-19 emerge or should a new pathogen similarly sweep across the globe in the future. That means crafting and implementing policies.

Ø  There has to be some preparedness in case this ever happens again. This reason caught a lot of people off guard, to say at least and even if it is not the coronavirus. It could be something else, and how are employers going to be able to deal with it.

Ø  Many businesses aside from some large operations probably did not have preparedness plans for emergencies or pandemics.

Ø  Besides increased social distancing where possible, one measure employers will likely adopt is having a ready supply of masks and gloves that workers can use should COVID-19 reappear or another public health emergency emerges.

Ø  While businesses may be hindered by various existing laws from requiring workers to do things like do a face mask or stay home if sick – absent any new governmental mandate that makes those things acceptable (workers may be receptive and encouraged in such scenarios).

Ø  It is also likely that employees will voluntarily take such precautions if managers lead by example and wear masks or other protective equipment. Note that the CDC and OSHA will have an outsized influence on what businesses ultimately do.

Ø  Employers always feel comfortable basing their decisions on some guidelines as opposed to them making the decision available, and mandatory. That will be a routine office supply when we get back to work and into the next flu season. This will depend a lot on guidance from CDC or OSHA.

The above statement means that most employers will have to rely on hiring remote workers to keep their businesses running – at least until we tide over the on-going serious COVID-19 storm. In this particular case, it is critical for you to have a comprehensive screening process in place for remote workers. It always recommended and advised to screen potential employees.

Background screening checks for employers will benefit them the most, Such as, financial behavior of applicants, checking if an applicant can be trusted with confidential data. Background check for hiring remote workers is a prerequisite.

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Stress and Coping

Outbreaks can be stressful

The outbreak of coronavirus disease 2019 (COVID-19) may be stressful for people. Fear and anxiety about a disease can be overwhelming and cause strong emotions in adults and children. Coping with stress will make you, the people you care about, and your community stronger.

Stress during an infectious disease outbreak can include

·         Fear and worry about your own health and the health of your loved ones

·         Changes in sleeping and eating patterns

·         Difficulty sleeping or concentrating

·         Worsening of chronic health problems

·         Worsening of mental health conditions

·         Increased use of alcohol, tobacco and other drugs

Everyone react differently to stress full situations

How to respond to the outbreak can depend on your background, the things that make you different from other people and the community you live in.

People who may respond more strongly to the stress of a crisis include

·         Older people and people with chronic disease with higher risk for severe illness from COVID-19

·         Children and teens

·         People who are helping with the response to COVID-19, like doctors, other health care providers, and first responders

·         People who have mental health conditions including problems with substance use

Take care of yourself and your community

Take care of yourself, your friends, and your family can help you cope with stress. Helping others cope with their stress can also make your community stronger.

Ways to cope with stress

·         Take break from watching, reading, or listening to news stories, including social media. Hearing about the pandemic repeatedly can be upsetting.

·         Take care of your body

o   take deep breaths, stretch, or meditate

o   Try to eat healthy, well balanced meals.

o   Exercise regularly, get plenty of sleep.

o   Avoid alcohol, and drugs.

·         Make time to unwind. Try to do some other activities you enjoy.

·         Connect with others. Talk with people you trust about your concerns and how you are feeling.

Know the facts to help reduce stress

Sharing the facts about COVID-19.Understanding the risk to yourself and people you care about can outbreak less stress full.

When you share accurate information about COCID-19, you can help make a connection with them.

Take care of your mental health

Call your healthcare provider if stress gets in the way of your daily activities for several days in a row.

People with pre-existing mental health conditions should continue with their treatment and be aware of new or worsening symptoms. Additional information can be found at the substance abuse and mental health services

Administration (SAMHSA) disaster preparedness page

For parents

Children and teens react, especially children, in part, on what they see from the adults around them. When parents and caregivers deal with the COVID-19 calmly and confidently, they can provide the best support for their children. Parents can be more reassuring to around them, especially children, if they are better prepared.

Watch for behaviour changes in your child

Not all children and teens respond to stress in the same way. Some common changes to watch for include

·         Excessive crying or irritation in younger children

·         Returning to behaviours they have outgrown (for example, toileting accidents or bedwetting)

·         Excessive worry or sadness

·         Unhealthy eating or sleeping habits

·         Irritation and “acting out” behaviours in teens

·         Poor school performance or avoiding school

·         Difficulty with attention and concentration

·         Avoidance of activities enjoyed in past

·         Unexplained headaches or body pain

·         Use of alcohol, tobacco, or other drugs

Ways to support your child

·        Talk with your child or teen about the COVID-19   Outbreak.

·        Answer questions and share facts about COVID-19 in a way that your child or teen can understand.

·        Reassure your child or teen that they are safe. Let them know it is ok if they feel upset. Share with them how you deal with your own stress so that they can learn how to cope from you

·        Limit your family’s exposure to news coverage of the event, including social media. Children may misinterpret what they hear and can be frightened about something they do not understand.

·        Try to keep up with regular routines. If schools are closed, create a schedule for learning activities and relaxing or fun activities

·         Be role model. Take breaks, get plenty of sleep, exercise, and eat well. Connect with your friends and family members.

For people at higher risk for serious illness

People at higher risk for severe illness, such as older adults, and people with underlying health conditions are also at increased risk of stress due to COVID-19. Special considerations include:

·         Older adults and people with disabilities are at increased risk for having mental health concerns, such as depression.

·         Mental health problems can present as physical complaints (such as headaches or stomach aches) or cognitive problems (such as having trouble concentrating).

·         Doctors may be more likely to miss mental health concerns among

o   People with disabilities due to focus on treating underlying health conditions, compared to people without disabilities.

o   Older adults because depression can be mistaken for a normal part of aging.

Common reactions to COVID-19

·         Concern about protecting oneself from the virus because they are at the higher risk of serious illness.

·         Concern that regular medical care or community services may be disrupted due to facility closures or reductions in services and public transport closure.

·         Feeling socially isolated, especially if they live alone or are in a community setting that is not allowing visitors because of the outbreak.

·         Guilt if loved ones help them with activities of daily living.

·         Increased levels of distress if they

o   Have mental concerns before the outbreak, such as depression.

o   Live in lower-income household or have language barriers.

o   Experience stigma because of age, race or ethnicity, disability, or perceived likelihood of spreading COVID-19.

Support your loved ones

Check in with your loved ones often. Virtual communication can help you and your loved ones feel less lonely and isolated.

Consider connecting with loved once by:

·         Telephone

·         E mail

·         Mailing letters or cards

·         Text messages

·         Video chat

·         Social media

Help keep your loved ones safe.

·         Know what medications your loved one is taking. Try to help them have a 4-week supply of prescription and over the counter medications. And see if you can help them have extra on hand.

·         Monitor other medical supplies (oxygen, incontinence, dialysis, wound care) needed and create a back-up plan.

·         Stock up on non-perishable food (canned foods, dried beans, pasta) to have on hand in your home to minimize trips to stores.

·         If you care for a loved one living in a care facility, monitor the situation and speak with facility administrators or staff over the phone. Ask about the health of the other residents frequently and know the protocol if there is an outbreak.

Take care of your own emotional health. Caring for a loved one can take an emotional   toll; especially during an outbreak like COVID-19.there are ways to support you.

Stay home if you are sick. Do not visit family or friends who are at greater risk for higher illness from COVID-19. Use virtual communication to keep in touch to support your loved one and keep them safe.

What health care providers can do?

·         Help connect people with family and loved ones to help lower distress and feelings of social isolation.

·         Let older adults and people with disabilities know it is common for people to feel distressed during a crisis. Remind them that asking for and accepting help is a sign of strength.

·         Have procedure referrals ready for anyone who shows severe distress or expresses a desire to help him-or herself or someone else.

·         See SAMHSA’S helping older adults after disasters: a guide to providing support.

What communities can do

Community preparedness planning for COVID-19 should include older adults and people with disabilities, and the organisation that support them in their communities, to ensure their needs are taken into consideration.

·         Many of these individuals live in the community, and many depend on services and supports provided in their homes or in the community to maintain their health and independence.

·         Long-term care facilities should be vigilant to prevent the introduction and spread of COVID-19. See guidance for long-term care facilities and nursing homes.

For people coming out of quarantine

It can be stressful to be separated from others if a healthcare provider thinks you may have been exposed to COVID-19 even if you do not get sick. Everyone feels differently after coming out of quarantine.

Emotional reactions to coming out of quarantine may include

·         Mixed emotions, including relief after quarantine

·         Fear and worry about our own health and the health of your loved ones

·         Stress from the experience of monitoring yourself or being monitored by others for signs and symptoms of COVID-19.

·         Sadness, anger, or frustration because friends or loved ones have unfounded fears of contracting the disease from contact with you, even though you have been determined not to be contagious

·         Guilt about not being able to perform normal work or parenting duties during quarantine

·         Other emotional or mental health changes

Children may also feel upset or have other strong emotions if they, or someone they know, has been released from quarantine.

For responders

Responding to COVID-19 can take an emotional toll on you, and you may experience secondary traumatic stress is stress reactions and symptoms resulting from exposure to another individual’s traumatic experiences, rather than from exposure directly to a traumatic event.

There are things you can do to reduce secondary traumatic stress reactions:

·         Acknowledge that secondary traumatic stress can impact anyone helping families after a traumatic event.

·         Learn the symptoms including physical (fatigue, illness) and mental (fear withdrawal, guilt).

·         Allow time for you and your family to recover from responding to the pandemic.

·         Create a menu of personal self-care activities that you enjoy, such as spending time with friends and family, exercising, or reading a book.

·         Take a break from media coverage of COVID-19.

·         Ask for if you feel overwhelmed or concerned that COVID-19 is affecting your ability to care for your family and patients as you did before the outbreak.

Content source: National Center for Immunization and Respiratory Diseases (NCIRD).Division of Viral Diseases.

Tips for taking care of yourself: https://emergency.cdc.gov/coping/responders.asp