1. Background Screening Challenges Will Continue as a Result of COVID-19
Government, business, and education closures in 2020 due to the pandemic have significantly and negatively affected myriad industries including background screening. Industries will continue to be impacted into 2021.
Court closures remain in jurisdictions with increased COVID-19 cases. Some courts have restricted access to records or have placed time restrictions on obtaining them. While there are workarounds in some instances, these closures and delays often impact the timing of criminal searches.
Employment and education verifications are also affected in that many employers and educational institutions have staff working remotely and therefore, do not have information as readily available as they previously had. Additionally, some employers have closed permanently which has made it difficult and sometimes impossible to verify past employment.
Employers have also struggled with various aspects of transitioning to remote workforces, such as with Form I-9 document inspections. Early last year, Immigrations and Customs Enforcement (ICE) built flexibility into the Form I-9 physical presence requirements for employers with remote employees provided that there are in-person re-verifications within three business days after the employees return to the workplace. This flexibility extends through January 31, 2021, but is expected to continue.
2. The COVID-19 Impact on Drug Screening Will Continue
COVID-19 will continue to have a tremendous impact on how, when, and where drug screenings are performed. Many applicants and employees are reluctant to go to a facility for drug testing for fear of contracting the virus. Employers must address and alleviate these concerns in order that they satisfy their drug free workplace policy.
Additionally, many collection sites have now implemented new policies and procedures for specific tests. For example, some collection sites no longer conduct Breath Alcohol Tests (BAT) or Pulmonary Function Tests (PFT), limiting options for applicants. Hours of operation continue to be fluid based on staff availability and sanitizing schedules, and more collection sites now require appointments for drug testing.
With the pandemic reaching new heights, this trend will continue into 2021. We recommend that employers review and rewrite their drug policies and protocols, as needed, and determine alternative solutions to their drug testing needs.
One possible solution that will likely see an increase in demand is remote oral fluid testing. Testing kits can be sent to the homes of applicants which can be monitored with teleconferencing solutions. The samples can then be sent back to the testing laboratories, eliminating the need for in-person testing in many situations.
3. Court Access Issues Will Evolve after COVID 19 Shutdowns
The trend of limiting access to criminal records has exploded throughout the country over the past couple of years. And, with unemployment at record highs due to the pandemic, this is a trend that is expected to continue into 2021.
Legislation limits access to some records and seals others. In some instances, any personal identifying information, or PII, is removed, making it difficult to match records with applicants. In other instances, courts have refused to share all records. Additionally, many states and localities are now automatically sealing convictions under Clean Slate Acts. In fact, courts in Pennsylvania (the first state to pass a Clean Slate Act) have until June 27, 2021 to seal 30 million criminal records. Other states, including Utah, California, and Michigan also have similar legislation. The cities of Los Angeles and Chicago have also cleared thousands of records resulting from certain marijuana convictions.
With these limitations, employers will continue to be concerned that the candidate who was reported as “clear” may still have a criminal background. To date, the legislation relates to older charges and minor drug possession charges. However, with a high unemployment rate and initiatives to get people back to work, employers will want to stay apprised of legislation that may further restrict access to criminal record information. It could potentially impact the safety of workplaces, properties, customers, employees, and tenants.
4. State and Local Laws Will Continue to Challenge Employers During the Hiring Process
While the pandemic slowed down much of our lives, it did not slow down the enactment of new laws limiting information that can be obtained by employers. For example, Ban the Box and Salary History Bans continued to be enacted in 2020. We expect similar laws to be enacted throughout the country in 2021.
The following states enacted new (or amended) Ban the Box Laws: St. Louis, Missouri (effective January 1, 2021); Virginia (marijuana possession only – effective July 1, 2020); and Hawaii (amended to provide additional protections to ex-offenders – effective September 15, 2020).
Maryland was the only state to enact Salary History Bans in 2020 (effective October 1, 2020).
5. More States Are Expected to Legalize Marijuana
Marijuana took center stage during the 2020 election. Mississippi passed a medical marijuana law (effective July 1, 2021), while Arizona (effective date to be determined), New Jersey (effective January 1, 2021), and Montana (partially effective October 1, 2021) each passed recreational marijuana laws. South Dakota passed both medical and recreational laws (effective July 1, 2021).
We believe other states are soon to follow. In fact, according to a Gallup poll in November of 2020, 68% of Americans are in favor of legalizing marijuana (up by 10% since 2015 and 20% since 2010).
Additionally, election overtones point to more criminal record and drug testing legislation being passed. There may also be changes on the consumer reporting side as the Consumer Financial Protection Bureau (CFPB) will soon fall under the leadership of an aggressive consumer advocate.
6. Privacy and Security Laws Will Increasingly Affect Background Screening
COVID-19 has affected and will continue to prompt more expansive privacy and security measures across all industries. As employees return to work, employers face increased challenges to provide safe work environments. While innovative technologies (symptom screening, contact tracing, etc.) to support re-opening initiatives can be helpful, employers must ensure they remain in compliance with all applicable laws including, where appropriate, the notice and consent requirements under the Fair Credit Reporting Act, the California Consumer Privacy Act (CCPA), and European Union’s General Data Protection Regulation (GDPR).
Employers in California should stay apprised of the recently enacted Proposition 24, the California Privacy Rights Act (CPRS), which will further expand the CCPA. While this expansion becomes effective on January 1, 2022, employers should monitor developments to ensure their own privacy policies and procedures remain in compliance. Additionally, there is now federal prioritization of data security and privacy issues, with the introduction of the Consumer Data Privacy and Security Act of 2020 (CDPSA). If passed this year or in the following years, it will provide consumers with expanded rights over personal information and even broader privacy and security compliance obligations for employers.
In 2020, the EU-US Privacy Shield was dismantled. It is a framework for regulating transatlantic exchanges of personal data for commercial purposes between the European Union and the United States, by the Court of Justice of the European Union. Privacy Shield was found invalid due to its inadequacy to provide sufficient protections in the United States for personal data of EU origin. In November of 2020, the European Data Protection Board (EDPB) adopted recommendations to help ensure compliance with EU levels of protection of personal data.
Further, businesses that utilize a consumer reporting agency for their background screening services should be sure to partner with one that has achieved accreditation with the Professional Background Screeners Association (PBSA) Background Screening Credentialing Council (BSCC).
The Background Screening Agency Accreditation Program (BSAAP) standard, policies and procedures, and measurements are available at www.pbsa.com.
7. Companies Will Initiate More Rigorous Screening Practices for Third-Party Vendors and Contractors
With companies of all sizes struggling to stay in operation due to the pandemic, many will choose to outsource various functions of their business. In doing so, the need for a comprehensive screening policy to cover the third-party vendors and contractors with whom they work will be vital in protecting their interests. Cases involving delivery companies or others contracted by another company where a tragedy unfolds, and where the contracting company is held responsible, have become far too common throughout the country.
Going forward, companies will not only need to assess their own screening criteria, but also that of their vendors and contractors. Ensuring the same criteria is applied, whether it is for an employee, vendor, or independent contractor is crucial for consistency in keeping the company, its employees, and its customers safe.
8. Applicants Will Expect More of Employers During the Hiring Process
In recent years, applicants have expressed a desire to work for companies that value them and their time throughout the hiring process, and this will continue in 2021. To them, it sets the expectations for the company’s culture and work environment. Each year, there is new technology to speed things up and provide for nearly instant gratification in many situations. This ease of information is what today’s candidates are accustomed to, and they expect the same as it relates to background checks and interviews.
In 2021, employers should consider processes and technologies that are available to streamline the hiring experience, including mobile-friendly apps and increased communications. Employers must also pay close attention to their online reputation as many applicants choose to express their negative views of the employer’s hiring process on social media platforms.
9. Employee Monitoring Will Occur with More Frequency
Particularly in light of the increased remote workforces around the country and world, more companies are realizing the importance of monitoring employees for indications of illegal behavior, including DUIs or other reckless driving reports. Employees represent a company’s brand, and now, often are needed to do so from home. Additionally, employees could have access to financial and other confidential information, raising privacy and security concerns. Not having trustworthy employees can lead to loss of productivity, workplace safety, and theft.
Continuous monitoring mandates continuous compliance. Employers must ensure that they have the employees’ consent to continue to conduct background screenings throughout their employ. Policies should reflect clearly when and why the screenings will occur, and should apply equally to all.
10. Additional Drug Testing Legislation Is Coming
As predicted, 2020 shaped up as one of the biggest years for marijuana-policy reform. Last year saw the implementation of Nevada and New York City’s bans on pre-employment testing for marijuana. And the November election demonstrated the overall increasing acceptance of marijuana legalization. However, while there may be some consensus on broad legalization, there is anything but harmony with regard to testing, accommodations, and CBD use.
The use of CBD products is now fairly widespread. CBD, while not technically marijuana, could still lead to a positive marijuana drug test. As such, more applicants and employees may fail a drug test because of an unregulated substance.
Additionally, marijuana remains a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. But more than half the states have legalized it in some form, with their own nuances. Employers are also continuing to struggle with questions, such as: Do I have to accommodate marijuana use? Can I still have a drug-free workplace? Can I get sued for terminating an employee for a drug test that is positive for marijuana?
The uncertainty surrounding marijuana’s legal status, CBD use, and an employer’s obligation to provide accommodations almost guarantees additional legislation and caselaw in 2021 to determine the parameters of the future of drug screening.