In a recent newsletter we discussed Illinois Senate Bill 1480 (SB 1480) which amended the Illinois Human Rights Act, the Illinois Equal Pay Act as well as the Illinois Business Corporation Act.
As a reminder, SB 1480 amended the Human Rights Act to prohibit employers from making employment decisions based upon an applicant or employee’s record of criminal convictions.
Section 2-103.1 of the Human Rights Act now states in part:
(A) Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to use a conviction record, as defined under subsection (G-5) of Section 1-103, as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment (whether "disqualification" or "adverse action")
Although the impact of this new law on most employers is significant, the language “Unless otherwise authorized by law” provides an exception that is important for health care employers to understand. Under Illinois law, some health care employers are prohibited from employing in some positions those who have been convicted of certain crimes.
Pursuant to the Illinois Health Care Worker Background Check Act (the Background Check Act), some health care employers are required to perform criminal background checks on applicants and prohibits those employers from employing those who have been found to have a disqualifying criminal conviction unless there is a waiver granted by the Illinois Department of Public Health.
The definition of “health care employer” under the Background Check Act is broad and includes hospitals, long-term care facilities, nursing homes, hospice programs and nursing agencies.
The Background Check Act applies to individuals employed or retained by a health care employer and includes home health care aides, nurse aides, personal care assistants, private duty nurse aides, day training personnel, or an individual working in any similar health-related occupation where he or she provides direct care or has access to long-term care residents or the living quarters or financial, medical, or personal records of long-term care residents. The Background Check Act also applies to all employees of licensed or certified long-term care facilities who have or may have contact with residents or access to the living quarters or the financial, medical, or personal records of residents. The Background Check Act does not apply to individuals who are licensed by the Illinois Department of Financial and Professional Regulation or the Illinois Department of Public Health.
The Health Care Worker Background Check Act sets forth those offenses which are considered disqualifying. The list is lengthy and contains offenses that are generally related to crimes of violence, financial malfeasance and certain drug offenses. The list of disqualifying offenses can also be found on the Illinois Department of Public Health website.
If an applicant or an employee is found to have been convicted of a disqualifying offense, the health care employer must give the applicant or employee notice that the background check revealed the conviction on which the employer is relying on to deny or terminate employment and a minimum of five business days to respond to the notice. In the case of an applicant or employee of a health care employer, the response must be related to an error in the reporting of the conviction, not an explanation of why the disqualifying conviction should not be considered by the health care employer.
As mentioned in our previous newsletter, other exceptions to the requirements of SB 1480 relevant to health care employers, even when the conviction is not disqualifying under the Health Care Workers Background Check Act, are when there is a substantial relationship between the previous criminal offense or the employment or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Substantial relationship means a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position. In those cases, the employer is obligated to engage in an interactive assessment to determine why the conviction should disqualify the applicant or employee and give the applicant or employee notice of the preliminary decision with the five-day opportunity to respond.
When making employment decisions based upon a criminal conviction, health care employers are advised to first review the Background Check Act to see if it applies to the employer as well as to the applicant or employee. If it does, the next step is to check the IDPH website to determine if the conviction is a disqualifying conviction due the nature of the crime. Once it has been confirmed that the Background Check Act applies and employment is going be terminated or a preliminary offer withdrawn, the employer should follow the notification process set forth in the Human Rights Act.
All employers are encouraged to consult with legal counsel before denying or terminating employment to anyone based upon a criminal conviction as a violation of SB 1480 can result in liability to the employer.
For further information contact us.
Articles distributed by Malecki Brooks Ford Law Group, LLC are advertisements and summaries for general information and discussion purposes only. They are not full analyses of the matters presented, legal, or otherwise, and may not be relied upon as legal advice.