The healthcare industry has always been unique when it comes to hiring. With roles often involving sensitive tasks, such as patient care and access to controlled substances, healthcare organizations are held to higher standards when screening candidates. One of the most significant challenges healthcare employers face today is navigating Ban-the-Box laws, which regulate how and when employers can inquire about a candidate or employee’s criminal history. These laws aim to reduce discrimination, promote fair hiring, and increase diversity in the workforce. However, balancing compliance with these laws and ensuring safety can be tricky for healthcare organizations.
Understanding Ban-the-Box Laws for Healthcare Compliance
Ban-the-Box laws have their roots in a movement to provide individuals with criminal records with a fair chance to find employment. The “box” refers to the checkbox that commonly appeared on job applications, asking candidates whether they had a criminal history. Too often, answering “yes” to this question led to automatic disqualification, regardless of the candidate's qualifications or the nature of the offense.
These laws vary by state and sometimes city or county, but they generally prohibit employers from inquiring about criminal history early in the hiring process. The idea is to give candidates an opportunity to be evaluated based on their skills and qualifications before their criminal history becomes a factor. In healthcare, this presents challenges, as roles may require rigorous background checks due to the sensitive nature of the work.
Balancing Ban-the-Box Compliance and Patient Safety in Healthcare
Healthcare employers face a unique dilemma. On the one hand, Ban-the-Box laws require fair hiring practices that give individuals with criminal records a chance. On the other hand, these employers must meet safety standards to protect patients and staff. For example, hospitals and clinics must ensure that employees working with vulnerable populations or controlled substances do not pose a risk due to their criminal history.
Many healthcare organizations have adapted by delaying criminal background checks until after a conditional offer of employment is made, as most Ban-the-Box laws require. But this doesn't eliminate the need for thorough vetting. Instead, healthcare employers must conduct individualized assessments to evaluate whether a candidate’s criminal history directly relates to the role in question. These assessments involve considering the nature of the offense, how much time has passed since the conviction, and any evidence of rehabilitation.
Key Elements of Ban-the-Box Laws
While Ban-the-Box laws share common goals, the specific requirements can vary significantly from one jurisdiction to another. Here are some of the key elements that healthcare employers need to consider:
- Timing of Criminal History Inquiries: Many states prohibit employers from asking about criminal history until a candidate has been selected for an interview or a conditional offer of employment has been made. In healthcare, this often means that background checks are conducted later in the hiring process than in other industries.
- Types of Criminal History Considered: Some states limit what types of criminal records can be considered. For example, sealed or expunged records, juvenile records, and certain non-felony convictions may be off-limits for consideration in the hiring process.
- Individualized Assessments: Employers are often required to perform individualized assessments when considering a candidate with a criminal record. This means evaluating factors such as the nature of the offense, its relevance to the job, and whether the candidate has demonstrated rehabilitation. In healthcare, this step is crucial to balancing the need for fair hiring with patient safety.
- Adverse Action Requirements: If an employer decides to take adverse action (e.g., rescind a job offer) based on a candidate’s criminal history, they must follow specific procedures. This usually involves providing the candidate with a pre-adverse action notice, allowing them to dispute the findings or provide mitigating evidence, and then waiting for a prescribed number of days before taking final action.
- Waiting Periods: Some states, such as California, require a specific waiting period between the pre-adverse and final adverse action notices. Employers must give the candidate time to respond before making a final decision.
State-by-State Considerations for Ban-the-Box Laws
California
California’s Ban-the-Box law applies to employers with five or more employees and is one of the most comprehensive in the country. Employers are prohibited from asking about a candidate’s criminal history until after a conditional offer of employment is made. Additionally, California requires employers to perform an individualized assessment and send a pre-adverse action notice if they plan to rescind the offer due to criminal history.
Los Angeles and San Francisco, as well as the broader LA County, have additional requirements, including specific adverse action notices and individualized assessments, making California one of the most complex states for healthcare employers.
Additionally, San Diego County’s Fair Chance Ordinance (FCO), which went into effect on October 10, 2024, applies to employers operating in unincorporated areas of the county who should evaluate necessary changes in when and how they inquire into criminal history during the hiring process.
New York
New York State’s Article 23-A mandates that employers conduct individualized assessments before taking adverse action based on criminal history. Employers cannot deny employment solely because of a conviction unless there is a direct relationship between the offense and the job or if the employment poses an unreasonable risk to property or public safety.
New York City’s Fair Chance Act extends these protections even further. The law requires a bifurcated background check process, meaning employers must complete non-criminal background checks (e.g., education and employment verification) before investigating criminal history. The law also includes strict adverse action requirements and detailed individualized assessment guidelines.
Illinois
Illinois’ Ban-the-Box law prevents employers from asking about criminal history until the candidate has been deemed qualified and selected for an interview. If there is no interview, employers must wait until after a conditional offer of employment is made. Illinois also requires individualized assessments and pre-adverse action notices, with a mandatory waiting period of five business days before finalizing adverse actions.
Chicago’s local ordinance adds additional requirements, such as specific individualized assessment criteria and a five-day waiting period before taking final adverse action.
Colorado
In Colorado, Ban-the-Box laws apply to all private employers, regardless of size. Employers cannot ask about criminal history on an initial application or in job advertisements. While Colorado’s law does not require individualized assessments or adverse action notices, healthcare employers should still ensure their background check policies comply with other relevant regulations.
Maryland
Maryland has a statewide Ban-the-Box law, but several counties, including Prince George’s, Montgomery, and Baltimore, have enacted additional regulations. These county-level laws require individualized assessments and, in some cases, waiting periods before adverse actions can be taken. For example, Prince George’s County requires a seven-day waiting period before final adverse action.
Hawaii
Hawaii was the first state to implement Ban-the-Box laws in 1998. The law prohibits employers from inquiring into criminal history until after a conditional offer of employment is made. In healthcare, Hawaii’s law requires employers to ensure that any criminal history considered is directly related to the job in question, with particular attention given to the nature of the offense and the responsibilities of the role.
Other Locations of Note
In addition to the states and cities covered, healthcare employers should be aware of several others with specific Ban-the-Box regulations. This is not an exhaustive list, and employers should consider additional states with important regulations. Minnesota, for example, prohibits inquiries into criminal history until after an interview. At the same time, Rhode Island and Vermont enforce similar rules after the initial interview or once a candidate is deemed qualified. Localities like Philadelphia and Seattle have particularly detailed requirements, including individualized assessments and adverse action notices. Washington, D.C., and Waterloo, Iowa, also have stringent Ban-the-Box laws that require careful attention.
Many laws apply to private and public employers, with some covering both applicants and existing employees. Given the variation in laws across states and cities, it’s critical to stay informed and consult with legal counsel when implementing hiring policies. Legal experts can provide guidance on navigating these complex and ever-evolving regulations, ensuring full compliance and reducing the risk of potential legal issues.
The Future of Ban-the-Box Laws
Ban-the-Box laws continue to evolve, with more states and localities enacting legislation. As these laws expand, healthcare employers must stay vigilant in updating their hiring processes to remain compliant. We’ll likely see more states adopt stricter requirements like those in California and New York, including additional waiting periods and individualized assessment mandates.
By staying informed and adopting best practices for compliance, healthcare employers can navigate Ban-the-Box laws while ensuring the safety of their patients and staff.
How DISA Can Help
Ban-the-Box laws present both challenges and opportunities for healthcare employers. While these laws promote fair hiring, they require careful compliance, particularly in states with complex regulations. By understanding the legal requirements and adopting practical strategies, healthcare organizations can ensure they hire fairly and responsibly while meeting the high standards necessary in this critical industry.
Navigating Ban-the-Box and adverse action laws across different states and jurisdictions is complex. While DISA offers background screening services and adverse action support on some platforms, it’s recommended that clients work with legal counsel to ensure compliance with all federal, state, and local regulations. Partnering with DISA allows healthcare organizations to focus on their core mission while confidently managing the complexities of Ban-the-Box compliance.
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout North America and Europe, DISA’s comprehensive scope of services includes background screening, drug and alcohol testing, DOT & HR compliance, occupational health services, and I-9/ E-Verify. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.