(1) The ((director)) secretary of the department of ((early learning (DEL))) children, youth and families (DCYF) or designee must conduct background checks on all employees in covered positions and individuals being considered for a covered position.

(2) The requirement for background checks must include the following:

(a) Current employees in covered positions.

(b) Any employee considered for a covered position because of a layoff, reallocation, transfer, promotion, demotion, or other actions that result in the employee being in a covered position.

(c) Any individual being considered for positions which are covered positions.

(3) Considered for positions includes decisions about:

(a) Initial hiring, layoffs, reallocations, transfers, promotions, demotions, or

(b) Other decisions that result in an individual being in a position that will or may have unsupervised access to children as an employee, an intern, or a volunteer.

(1) Employers may conduct background checks on applicants and/or employees if required by state or federal law, or if the employer identifies the need for a background check to verify that the applicant or employee satisfies the position requirements.

(2) Employers who conduct background checks must develop procedures regarding how and when background checks will be conducted. The procedures must include notification to applicants and/or employees if a background check is required.

(1) The background check information considered by the ((director)) secretary of the ((DEL)) DCYF will include but not be limited to conviction records, pending charges, and disciplinary board final decisions.

(2) The results of the background check must be used solely for the purpose of determining the character, suitability and competence of the applicant and/or employee.

An employee and/or individual applying for or being considered to remain in a covered position must authorize the ((director)) secretary of the ((DEL)) DCYF or designee to conduct a background check.

Failure to authorize the ((director)) secretary of the ((DEL)) DCYF or designee to conduct a background check disqualifies an employee or individual from consideration for any covered position including their current covered position.

(1) A permanent employee with a background check disqualification may be subject to any of the following actions in no specific order:

(a) Voluntary demotion;

(b) Job restructuring;

(c) Voluntary resignation;

(d) Job reassignment;

(e) Nondisciplinary separation in accordance with WAC 357-46-195; or

(f) Disciplinary action in accordance with WAC 357-40-010.

(2) An appointing authority may use the following interim measures while exploring the availability of actions (not to exceed thirty calendar days except in cases where there are investigations of pending charges):

(a) Voluntary use of accrued vacation, exchange, and/or compensatory time;

(b) Authorized leave without pay, if there is no paid leave available, or if the employee chooses not to use paid leave; and/or

(c) Reassignment to another work location.

(d) When considering the above actions, the agency will consider the least restrictive means necessary to prevent unsupervised access.

(3) Before a permanent employee may be separated due to a background check disqualification, the search for a noncovered position will occur over a period of thirty calendar days.

(1) In order to implement the requirements of WAC 357-19-183, the ((director)) secretary of the ((DEL)) DCYF or designee must:

(a) Notify employees and individuals being considered for covered positions that a background check is required for covered positions; and

(b) Develop policies and procedures pertaining to background checks.

(2) Information contained in background checks must be used solely for the purpose of determining the character, suitability and competence of the employee and/or individual being considered for covered positions. The information must not be disseminated further. Dissemination and use of such information is governed by the criminal records privacy act, chapter 10.97 RCW. Unlawful dissemination of information protected by the criminal records privacy act is a criminal offense and may result in prosecution and/or disciplinary action as provided in chapter 357-40 WAC. However, results of a background check may be discoverable pursuant to the rules of civil discovery, or subject to disclosure pursuant to a public records request.

A permanent employee of ((DEL)) DCYF who is disqualified from a covered position as a result of a background check has the right to present to the ((director)) secretary of the ((DEL)) DCYF or designee evidence that mitigates convictions, pending charges, and disciplinary board final decisions including, but not limited to:

(1) The employee's background check authorization and disclosure form;

(2) The employee's age at the time of conviction, charge, or disciplinary board final decision;

(3) The nature and severity of the conviction, charge, or disciplinary board final decision;

(4) The length of time since the conviction, charge, or disciplinary board final decision;

(5) The nature and number of previous offenses;

(6) Vulnerability of the child to which the employee will or may have unsupervised access; and

(7) The relationship between the potentially disqualifying event and the duties of the employee.