PROPOSED RULES
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: WAC 356-56-203 Department of Social and Health Services -- Background check requirements and 356-56-600 Appeals.
Purpose: These rules pertain to background checks on current employees and applicants for Washington management service positions and appeals for Washington management service employees.
Statutory Authority for Adoption: Chapter 41.06 RCW.
Statute Being Implemented: RCW 41.06.150.
Summary: The rule modifications are a result of ESSHB [ESSB] 5606 that became effective July 22, 2001. ESSHB [ESSB] 5606 requires the Department of Social and Health Services to conduct background checks on current employees as well as applicants for specific positions.
Name of Agency Personnel Responsible for Drafting: Sharon Whitehead, 521 Capitol Way South, Olympia, WA, (360) 664-6348; Implementation and Enforcement: Department of Personnel.
Name of Proponent: Department of Personnel, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The new WAC 356-56-203 is a result of ESSHB [ESSB] 5606 that became effective July 22, 2001. ESSHB [ESSB] 5606 requires the Department of Social and Health Services to conduct background checks on all applicants and current employees in specific positions. The modification to WAC 356-56-600 allows employees in the Washington management service, who are nondisciplinary separated due to a background check to appeal to the Personnel Appeals Board.
Proposal Changes the Following Existing Rules: See above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.
RCW 34.05.328 does not apply to this rule adoption.
Hearing Location: Department of Personnel, 521 Capitol Way South, Olympia, WA, on October 10, 2001, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Department of Personnel by October 3, 2001, TDD (360) 753-4107, or (360) 586-8260.
Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, fax (360) 586-4694, by October 5, 2001.
Date of Intended Adoption: October 10, 2001.
September 5, 2001
E. C. Matt
Director
(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 provision 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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(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.