Assisted living facilities (ALFs) may find it difficult to comply with newly updated guidance that allows individuals with criminal backgrounds to work in senior living communities.
The Equal Employment Opportunity Commission (EEOC) recently updated its guidance on the use of criminal background checks in employment, arguing that employment discrimination based on criminal history is in violation of the Civil Rights Act of 1964.
Because ALFs are governed by state laws that prohibit the hiring of individuals based on criminal history, a middle ground will have to be sought between state and federal regulators to ensure that residents’ safety is paramount, says Paul Williams, senior director of government relations at the Assisted Living Federation of America (ALFA).
Though the updated guidance is still relatively new, ALFA is already trying to get a handle on the situation by clearing up any ambiguities.
“What we are telling our providers is that the guidance has the full effect of the law,” says Williams. “What we interpret this to mean is that regardless of company policy or state law, the central point is that you cannot disqualify an applicant because of his or her criminal history.”
This guideline poses a problem for ALFs, many of which are regulated by states that have implemented barrier crimes into their employee screening processes. Under these, applicants cannot obtain employment if they have been convicted of certain crimes.
Many state laws even have statutes against criminal backgrounds to be employed in senior living residences, says Williams.
But disqualification should not necessarily be automatic, according to EEOC. There is criteria regarding the circumstances of criminal offenses, such as consideration as to what the crime was and what the individual’s record has been since the crime.
Adhering to the federal guidance may seem to go against what senior living communities have been doing to protect residents.
“Some forward thinking providers will want to hire these people, but don’t want to subject their residents to the situation of hiring someone with a criminal history,” says Williams. “Out of good risk management, providers might have policies that prohibit them from hiring criminal offenders from working in senior living communities, regardless of state law.”
At this early stage, ALFA is currently working with provider members to articulate concerns surrounding the guidance that may impact resident safety. Specifically, they are seeking increased clarification to address what crimes fall under EEOC’s guidance.
“We’re still trying to ascertain what handcuffs this will really put on providers in the aspect of trying to look out for resident safety,” says Williams.
If ALFs are required to comply under the full extent of EEOC’s guidance, some of the reconciliation might be played out in the courts, he says, if situations arise where applicants are turned down because they are a criminal offender.
Written by Jason Oliva