Compliance Clips for May 2020

CONSUMER REPORTING

9th Circuit Case Addresses FCRA, Background Screening, and Rules on “Standalone” Disclosure
As class action lawsuits continue to gain momentum, employers should continue to be very aware of compliance surrounding Disclosure and Authorization forms related to background screening. With that said, on April 24, 2020, the 9th Circuit upheld the dismissal of a case arguing that an employer violates the FCRA (a) by providing an FCRA disclosure simultaneously with other employment materials, and (b) by failing to place a FCRA authorization on a standalone document. In this latest decision, the court held that the employer’s disclosure document satisfied the “standalone” requirement because that single-page document included nothing beyond disclosing an intent to obtain a background report, the employer’s logo, and a signature block. Moving forward, please consult with your legal resources to determine compliance of your Disclosure and Authorization forms.
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Compliance with Form I-9 and E-Verify Requirements in Light of COVID-19
While we shared this information previously, it bears repeating in light of ongoing COVID-19 efforts. The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes. However, the government is suspending the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
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SUBSTANCE ABUSE TESTING

Florida Medical Marijuana Users may Soon Become Protected Class
Both chambers of the Florida Legislature are currently considering proposed bills aimed at extending certain protections to Florida employees who are legal medical marijuana users — H.B. 595 and S.B. 962, which are collectively entitled the Medical Marijuana Employee Protection Act. Both bills, if passed, would extend to both private- and public-sector employees (with the exception of safety sensitive positions) and employment applicants in Florida. If passed, one of the new rights these bills would provide to employees is the right to sue an employer if the employer takes an adverse employment action due to an employee’s status as a legal medical marijuana user.
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Utah State Legislature Clarifies: Private Employers Not Required to Accommodate Use of Medical Cannabis
The Utah State Legislature enacted Senate Bill 121, which amends and clarifies various provisions of Utah’s medical cannabis laws, including a pronouncement that private employers are not required to accommodate the use of medical cannabis. The key takeaway: private employers in Utah now definitively know that they are under no legal obligation to accommodate employee use of medical cannabis, either at the workplace or away from work. Employers that do not intend to accommodate the use of medical marijuana are advised to clearly communicate their policies so employees are aware that the use of marijuana, medical or otherwise, violates company policy.
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New Jersey: Failed Drug Test not Enough to Dismiss Claim of Disability Discrimination
In a recent employee-friendly trend, various courts have found that employers discriminate against certified medical marijuana users when adverse employment actions are taken against them solely because of failed drug tests. This certainly means employers should consider assessing their current policies and procedures.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX

Lawsuit against Waterloo’s ‘Ban the Box’ is dismissed
The City of Waterloo, Iowa announced that the lawsuit filed against the Fair Chance Initiative (Ban the Box) has been dismissed. Under the city ordinance, scheduled to take effect on July 1, 2020, employers will no longer be allowed to have a criminal history box on applications, and cannot ask about criminal history during the hiring process. However, employers can still do background checks on applicants.
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SALARY HISTORY

States and localities that have outlawed pay history questions
State and local governments are increasingly adopting laws and regulations that prohibit employers from requesting salary history information from job applicants. In fact, there currently are 18 state-wide salary bans in place, and another 21 cities/jurisdictions who have salary history ban legislation. As a reminder, we’re reposting a great site that lists them all, including recent additions and upcoming bans:
Colorado: January 1, 2021
St. Louis, Missouri: March, 2020
Cincinnati, Ohio: March, 2020 (estimated)
Toledo, Ohio: June, 2020
READ MORE

Questions? We’re here to help!

The New Normal: Hiring and Onboarding Employees Remotely During COVID-19

For organizations worldwide, the response to the COVID-19 pandemic has been a swift shift to a new normal. In part, that likely means keeping business as usual by transitioning to hiring and onboarding employees remotely. The fundamentals of hiring remain the same, and the goal is always to make great hires. That said, there’s never been a better time to take a look at your procedures and ensure you’re discovering good people, making them feel like they’re a part of your company’s big picture, and giving them the tools to succeed—regardless of whether they ultimately work inside or outside of your office.

Be creative in discovering your next great candidate

As a result of COVID-19, there are a LOT of candidates looking for their next opportunity to contribute. Your job is to find an efficient way to sort through a growing stack of applications and find the ones you’ll likely interview.

First step? Consider finding a free moment to take a look at your application. Are you simply asking “yes/no” questions, or are you also asking deeper, open-ended questions—questions that allow your potential candidates to really paint a complete picture of who they are, where they’ve been, and most importantly, what they’re capable of achieving at your company? Perhaps go one step further and ask what interests them about your company, the open position, and more specifically, what they might accomplish once hired. Additional information can help considerably as you decide who to move forward in your process.

Be transparent during trying times

Once it’s time to reach out for introductions, remember that these are strange days. Chances are really good that you’re speaking with candidates who are feeling uncertain about their professional future. You may speak to a recent graduate who is unsure how to land a first opportunity during COVID-19, or you may be connecting with candidates who have lost long-standing jobs.

Now is the time to be transparent. Be very honest and open with your candidates about your company’s efforts to protect both the business and the safety of the employees. Share with them the realistic timeline for remotely hiring and onboarding new employees. Clear and authentic communication can put candidates at ease during this time, and even give them greater confidence in your company.

Take advantage of tech

It’s no secret that the video format is taking over. From virtual proms, to family gatherings and holidays, we are growing more comfortable communicating “on-screen.” As you move forward with interviews, video chat apps are a good alternative to conducting phone interviews. Honestly, it’s not as easy to pick up on non-verbal cues when you’re not sitting in front of a candidate. But through video, you can get a general sense for how they present themselves, and how they show enthusiasm for you, your company, and the potential role.

Collaborate with IT for success

If you aren’t best friends with your IT team, there’s never been a better time to introduce yourself. Hiring remotely can present a long list of challenges . . . many of them technical. There’s nothing more off-putting than stalling an interview or training session because your microphone isn’t working.

Work closely with your IT team to evaluate the tools and resources you have in place, and where you can quickly and effectively improve things to benefit your candidate’s experience. And remember, the onboarding experience is more than the video interview. Be sure to collaborate with IT to ensure that your training program and other onboarding tasks can also successfully be administered remotely.

Get your candidate’s team involved

Whether your candidate will work remotely or in your offices, it’s important to immediately provide a sense of teamwork. Even when hiring remotely, there are opportunities to find candidates who will thrive when contributing to a team atmosphere.

Whenever possible, include your candidate’s future teammates in the interview process. With the success of video chat software, this is now more possible than ever before. It’s not much of an issue to set up conversations between people in multiple locations and across different time zones. No need to get everyone traveling to numerous office interviews. Even better, it allows candidates to quickly meet and get to know team members they will be working with before accepting an offer.

Introduce them to the big picture and make sure they’re interested

It probably goes without saying, but we’ll say it anyway. Since your candidates are getting introduced to you and your company without visiting your offices, it’s important to spend a little time with the big picture. Open a dialogue to find out just how truly interested in your company the candidate is, and if they seem driven to contribute to what your company is accomplishing. Let them know what success looks like for your open position, and what will be asked of them to achieve that success. With smart questions, you’ll be well on your way to finding the right person for the job.

Show flexibility when onboarding

As you’re making great hires during COVID-19, you’re probably noticing that the onboarding process requires a little flexibility. The first days and weeks are critical as you introduce your employees to their teams, company culture, product information, benefits, etc. During this time, video conferencing can play an immense role in the process. Now is also a good time to take a look at the effectiveness of welcome packages and other introductory communication you present.

During this time, you may not have opportunity to meet face to face with your new employees, so it’s critical that you go the extra mile to make sure your they feel as connected to their new company as possible.

Guidance from DOT’s Office of Drug and Alcohol Policy and Compliance (ODAPC) during COVID-19

The Office of Drug and Alcohol Policy and Compliance released guidance regarding the impact of the COVID-19 pandemic on processes and compliance related to DOT Drug and Alcohol Testing requirements.

This information is specific to:

  1. performing remote evaluations by Substance Abuse Professionals (SAP), and,
  2. the re-qualification timelines for collectors, Medical Review Officers (MRO), Screening Test Technicians (STT) and Breath Alcohol Technicians (BAT), and SAPs.

This information is effective while there is a determination that COVID-19 presents a health emergency, or through June 30, 2020, whichever is sooner.

FOR DETAILS, please read the full statement. In short:

SAP Assessments and Evaluations

ODAPC recognizes that conducting face-to-face assessments and evaluations during the COVID-19 public health emergency may not be possible or advisable for certain individuals. ODAPC would allow SAPs to conduct a remote face-to-face evaluation and assessment (under statement parameters like two-way audio and visual technology that offers quality and clarity to read non-verbal physical cues) while this policy is in effect. ODAPC will not consider an evaluation or assessment performed remotely as an act of serious non-compliance for purposes of starting a public interest exclusion proceeding against the service agent while this statement of enforcement discretion is in effect.

Re-qualification Timelines for Certain Service Agents

If a service agent is unable to meet their re-qualification due date while this statement of enforcement discretion is in effect, the Department will not consider it a non-compliance for purposes of starting a public interest exclusion proceeding against the service agent.  The Department is providing this flexibility for service agents that 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 national emergency (e.g., facility closures, State or locally imposed quarantine requirements, or other impediments).

Drug Screening Precautions for Candidates Visiting Patient Service Centers

Throughout the ongoing fight to overcome COVID-19, screening laboratories and their Patient Service Centers have shown great commitment to the safety of their employees as well as candidates visiting locations nationwide to undergo drug screening collection. Employers can rest assured that efforts are in place to help make candidate experiences as safe as possible:

Patient Service Centers do Not Collect/Process COVID-19 Specimens
For the protection of candidates, Patient Service Centers do not collect or process COVID-19 test specimens. Anyone who has reason to suspect they have COVID-19 should immediately reach out to their doctor or healthcare provider for advice on where to get tested in their specific community.

Service Center Hours for High-Risk/Vulnerable Candidates
Please note that older candidates, or those with special medical conditions that put them at greater risk for COVID-19, have options. Patient Service Centers offer early hour availability each business day to serve with VIP care. While nobody will be turned away during these early appointments, the intent of this action is to provide protection to our communities while also offering a little peace of mind to those vulnerable candidates accessing Patient Service Centers for drug screening collection.

Wait for Your Appointment Where Comfortable
To best comply with Centers for Disease Control (CDC) guidelines for social distancing, Patient Service Centers offer options for candidates to check in and then wait in their vehicle or a nearby location for their appointment. Candidates can be alerted via text message or phone call when a technician is available to see them.

Safety at Patient Service Centers
In addition to social distancing efforts, technicians and facilities have strengthened their already-rigorous hygiene practices, including more frequent hand washing and disinfection/sanitation schedules, and ongoing COVID-19 education and training. Many, if not the majority of Patient Service Centers, may now also require candidates to wear face masks when visiting.

Please let us know if you have any questions about your Drug Screening program during this time of heightened precaution.

Compliance Clips for April 2020

CONSUMER REPORTING

Compliance with Form I-9 and E-Verify Requirements in Light of COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19.The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes. However, in light of COVID-19–the government is suspending the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

House and Senate Bills Introduced to Amend FCRA in Response to COVID-19
On March 17, 2020, the United States Senate introduced a bill to amend the Fair Credit Report Act, preventing negative credit reporting during the COVID-19 pandemic. On March 23, 2020, the United States House of Representatives introduced a similar bill.  “The Disaster Protection for Workers’ Credit Act” seek to place a four-month moratorium on all negative credit reporting.
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SUBSTANCE ABUSE TESTING

Marijuana Legislation: Coming Soon to the Southeast?
The 2020 state legislative sessions are underway across the country and a hot topic in many states is medical marijuana. Last year, Alabama was poised to become the first Deep South state to enact a medical marijuana law. The Alabama legislature ultimately tabled the issue until the 2020 legislative session. Now, the Alabama Legislature is considering Senate Bill 165 (AL-SB165), which would create the Compassion Act to legalize medical marijuana in Alabama. The Kentucky legislature is considering House Bill 136 (KY-HB136), which would legalize medical marijuana in Kentucky. Finally, Mississippi voters will soon have the opportunity to vote on whether to amend the state constitution to allow medical marijuana.
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Recent DOT Guidance on Drug and Alcohol Testing During COVID-19
Monday, March 23, 2020: the United States Department of Transportation issued guidance for DOT-regulated employers, employees, and their service agents that might be facing challenges in meeting the department’s drug and alcohol testing requirements due to the pandemic. While DOT-regulated employers remain obligated to comply with applicable DOT training and testing requirements, this guidance addresses optional best practices if collection sites and related services are unavailable.
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New Jersey: Medical Marijuana Industry Advocates Recommend Legislation Changes
The state Health Department amended the medical marijuana program to serve patients and inhibit the spread of the coronavirus by letting dispensaries make curbside sales. As an upcoming change, Attorney Bill Caruso, a founding member of New Jersey United for Marijuana Reform, expressed optimism that support for home cultivation would also grow.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

DATA PRIVACY

Seven Coronavirus Scams Targeting Your Business
Please know that businesses are at risk, too. Keep your guard up against these seven B2B scams that try to exploit companies’ concerns about COVID-19.
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SALARY HISTORY

States and Localities that have Outlawed Pay History Questions
State and local governments are increasingly adopting laws and regulations that prohibit employers from requesting salary history information from job applicants. In fact, there currently are 18 state-wide salary bans in place, and another 21 cities/jurisdictions who have salary history ban legislation. To keep it all top of mind, here’s a great site that lists them all, including recent additions, and upcoming bans:
Colorado: January 1, 2021
St. Louis, Missouri: March, 2020
Cincinnati, Ohio: March, 2020 (estimated)
Toledo, Ohio: June, 2020
READ MORE

Questions? We’re here to help!