§ 1190 Criminal background checks.
(a) The purpose of the criminal background check and drug screening requirements of this section and § 1191 of this title is the protection of the safety and well-being of residents of this State who use the services of prescribed pediatric extended care centers licensed under this title or who employ a person to provide care in the facility. These sections must be construed broadly to accomplish this purpose.
(b) Definitions. — As used in this subchapter:
(1) "Applicant'' means any of the following:
a. An individual seeking employment with an employer.
b. A current employee who seeks a promotion from an employer.
c. A self-employed individual or contractor seeking employment in a prescribed pediatric extended care center.
d. A current employee of an employer who the Department has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed.
e. A former employee who consents prior to leaving employment to periodic review of his or her criminal background for a fixed time period.
(2) "Background Check Center'' ("BCC'') means the electronic system which combines the data streams from various sources within and outside the State in order to assist an employer in determining the suitability of an individual for employment in a prescribed pediatric extended care center.
(3) "Criminal history'' means a report from the Department of Health and Social Services regarding its review of the applicant's entire federal criminal history from the Federal Bureau of Investigation, under Public Law 92-544 as amended (28 U.S.C. § 534) and the applicant's Delaware record from the State Bureau of Identification.
(4) "Employer'' means a prescribed pediatric extended care center.
(5) "Prescribed pediatric extended care center'' means a facility licensed under § 122(3)q. of Title 16.
(6) "SBI'' means the State Bureau of Identification.
(c) An employer may not employ an applicant for work in a prescribed pediatric extended care center before obtaining a criminal history. The criminal history of any individual not employed directly by the facility must be provided to the facility upon the individual's commencement of work.
(d) The requirements of subsection (c) of this section may be suspended for 60 days from the date of hire if the employer wishes to employ the applicant on a conditional basis.
(1) Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history.
(2) The Department may not issue a criminal history if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge. The Department may extend the time limits for good cause shown.
(e) An employer may not employ or continue to employ an individual with a conviction deemed disqualifying by Department regulations.
(f) Any employer who employs an applicant and fails to secure a criminal history is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. An employer is also subject to this penalty if that employer conditionally employs an applicant before receiving verification that the applicant has been fingerprinted for purposes of the criminal history.
(g) The criminal history provided to the employer is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment. It must be stored in a manner that maintains its confidentiality.
(h) An applicant may not be employed by an employer other than conditionally pursuant to subsection (d) of this section until the applicant's employer has secured the applicant's criminal history.
(i) Before an applicant is permitted to be employed in a prescribed pediatric extended care center, the applicant must, upon request, do any of the following:
(1) Provide accurate information sufficient to secure a criminal history.
(2) Execute a full release to enable the employer to secure a criminal history and to update the criminal history while employed.
(3) Execute a full release giving the employer permission to provide the criminal history to the facility where the work is to be performed if the employer is other than the facility.
(j) An applicant who fails to comply with subsection (i) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
(k) The Department shall promulgate regulations regarding all of the following:
(1) The criteria it uses to determine unsuitability for employment.
(2) The policies and procedures for preparing the criminal history which govern the frequency of criminal record review and updating.
(3) The frequency with which fingerprints must be obtained.
(4) The information that the Department provides in the criminal history about disqualifying and nondisqualifying criminal convictions.
(5) The methods for notifying applicants and employers of the results of the Department's review, and for providing applicants with the criminal history.
(6) The administrative review process available to a person desiring to contest adverse information.
(7) Other provisions required to achieve the purpose of this section.
§ 1191 Mandatory drug screening.
(a) An employer may not employ any applicant without first obtaining the results of that applicant's mandatory drug screening.
(b) All applicants must submit to mandatory drug screening, as specified by regulations promulgated by the Department.
(c) The Department shall promulgate regulations regarding the pre-employment screening of all applicants for use of all of the following illegal drugs:
(4) Phencyclidine ("PCP'').
(6) Any other illegal drug specified by the Department, under regulations promulgated under this section.
(d) The employer must provide confirmation of the drug screen in the manner prescribed by the Department's regulations.
(e) Any employer who fails to comply with the requirements of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.