WSR 01-18-051

EMERGENCY RULES

PERSONNEL RESOURCES BOARD


[ Filed August 30, 2001, 1:54 p.m. ]

Date of Adoption: August 30, 2001.

Purpose: The purpose of WAC 356-56-203 is to address background checks for applicants and/or current employees, of the Washington management service, within the Department of Social and Health Services. The purpose of WAC 356-56-600 is to address appeals to the Personnel Appeals Board by Washington management service employees.

Citation of Existing Rules Affected by this Order: Amending 1 [WAC 356-56-600].

Statutory Authority for Adoption: RCW 41.06.150.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The above rule modifications are a result of E2SHB [ESSB] 5606 that became effective July 22, 2001. E2SHB [ESSB] 5606 requires the Department of Social and Health Services to conduct background checks on current employees as well as applicants for specific positions.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 1, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 1, Repealed 0.
Effective Date of Rule: Immediately.

August 30, 2001

E. C. Matt

Director


NEW SECTION
WAC 356-56-203   Department of social and health services -- Background check requirements.   (1) The secretary of the department of social and health services shall conduct background checks on all employees in covered positions ("employees") and persons under final consideration for a covered position ("applicants"). A covered position is one in which a person will or may have unsupervised access to children, vulnerable adults, or individuals with mental illness or developmental disabilities. Employees and applicants shall authorize the secretary of the department of social and health services to conduct a background check.

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

(a) Any employee seeking a covered position because of a reduction-in-force or other movement.

(b) Any applicant prior to appointment into a covered position, except when appointment is made on a conditional basis under subsection (6)(b) of this section.

(3) A background check will be conducted on the final preferred candidate prior to appointment.

(4) The secretary of the department of social and health services shall use the results of a background check solely to determine the character, competence and suitability of a person for a covered position. The background check information shall consist of:

(a) Conviction records, pending charges, and disciplinary board final decisions.

(b) Evidence that substantiates or mitigates convictions, pending charges, and disciplinary board final decisions including, but not limited to:

(i) The employee or applicant's background check authorization and disclosure form;

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

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

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

(v) The nature and number of previous offenses;

(vi) Vulnerability of the child, vulnerable adult, or individual with mental illness or developmental disabilities to which the employee or applicant will or may have unsupervised access; and

(vii) The relationship between the nature of the conviction, pending charge, or disciplinary board final decision and the duties of the employee or applicant.

(5) A permanent employee with a background check disqualification is subject to any of the following actions:

(a) Job restructuring;

(b) Job reassignment;

(c) Movement in accordance with WAC 356-56-205;

(d) Voluntary resignation;

(e) Non-disciplinary separation. The employee shall be separated by the appointing authority after fifteen calendar days written notice unless the employee requests a shorter notice period;

(f) Disciplinary action in accordance with WAC 356-56-500; and/or

(g) Interim measures that may be used while the appointing authority explores the availability of actions (not to exceed 30 calendar days except in cases where there are investigations of pending charges):

(i) Voluntary use of accrued vacation and/or exchange time.

(ii) Authorized leave without pay, if there is no paid leave available, or if the employee chooses not to use paid leave.

(iii) Reassignment to another work location.

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

(6) The secretary of the department of social and health services shall:

(a) Notify employees and applicants that a background check is required for covered positions;

(b) Develop procedures specifying when employees and applicants may be hired on a conditional basis pending the results of a background check;

(c) Develop policies and procedures pertaining to background checks; and

(d) Notify employees of any general service promotional register rights they may have.

(7) Failure to authorize the secretary of the department of social and health services to conduct a background check disqualifies an employee or applicant from consideration for any covered position including their current covered position.

(8) An applicant for a covered position who is denied employment due to a disqualifying background check may request a review by the appointing authority. Requests for review must be in writing and received by the appointing authority within fifteen calendar days of the postmark date of the notification.

(9) A separation under subsection (5)(e) of this section shall not be considered a disciplinary action as set forth in WAC 356-56-500. A permanent Washington management service employee separated under (5)(e) of this section may appeal to the personnel appeals board in accordance with WAC 356-56-600.

(10) A Washington management service employee who has been separated under subsection (5) of this section, and who has held permanent status in the Washington general service, will be able to apply promotionally for any classes that are at the same salary level or lower than the position from which he/she was separated. Employee's access to the general service promotional register will be governed by the provisions of WAC 356-26-030 (4)(d)(ii).

(11) Nothing in this rule shall limit the secretary of the department of social and health services' use of other authorities to conduct background checks.

(12) Information pertaining to background checks is confidential and shall be used solely for the purpose of determining the character, suitability and competence of the applicant and/or employee. Misuse of background check information is a criminal offense and may result in prosecution and/or disciplinary action as provided under WAC 356-56-500.

(13) The department of social and health services will submit a report to the director by January 31, 2002, reporting actions taken under subsection (5) of this rule and placement of employees into other positions within the agency.

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AMENDATORY SECTION(Amending WSR 94-01-126, filed 12/17/93, effective 1/8/94 [1/18/94])

WAC 356-56-600   Appeals.   (1) Only disciplinary action as defined in WAC 356-56-500, transfer that is alleged to be an unreasonable commute, disability separation, nondisciplinary separation made under the provisions of WAC 356-56-203 (5)(e) of these rules, or reduction in force action directly affecting a permanent Washington management service employee may be appealable to the personnel appeals board as provided in Title 358 WAC.

(2) Decisions on which Washington management service positions shall be eliminated under reduction in force actions shall not be appealable to the personnel appeals board.

[Statutory Authority: Chapter 41.06 RCW and RCW 41.06.500. 94-01-126, 356-56-600, filed 12/17/93, effective 1/18/94.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Washington State Code Reviser's Office