In March 2020, the world as we knew it came to a standstill. People were told to stay at home. Factories around the world have closed and shipping orders have been canceled. Non-essential workers, stranded at home due to government mandates or illness, were not available to generate or move many of the materials that, while non-essential, kept the fabric of our economy running.

The demand, however, has not stopped. Many American workers have found themselves with a new normal and a new way of life – indefinitely at home, working remotely. Due to the uncertainties and precautions related to Covid-19, online orders have increased. From toilet paper to flour to make bread, to toys to occupy the kids, to the home office and distance education equipment – the demand hasn’t stopped as the supply has become limited.

These supply chain issues continued through 2020 and 2021, and are expected not to be alleviated by 2022.

Companies operating in logistics, manufacturing and similar industries are directly affected by these supply chain issues and changes in economic demand. Businesses are struggling to put their products on the shelves, experiencing months of delays, and even seeing costs rising. Meanwhile, hiring needs have skyrocketed as available labor options have exhausted. All of these changes have combined to impact hiring decisions, the need to check and monitor criminal records, and other health and safety issues in the workplace.

Criminal Background Checks in the Age of Covid-19 More than ever, criminal background checks and workforce monitoring are essential for continuity and workplace safety for employees and customers. Before Covid-19, many logistics companies focused on delivering goods and products to a physical point of sale for distribution to customers. However, this is not always the case. Since 2020, fewer people visit physical stores and rely on direct door-to-door deliveries instead. For example, recent reports show that the pandemic has more than doubled the activity of food delivery apps. Online sales grew 32.4% year-over-year in 2020, reaching over $ 791 billion in online sales. And a survey of 3,700 consumers indicated that they are now shopping more frequently online.

With these changes in our logistics economy come new decision-making considerations for employers. Employers – more than ever before – face the obligation to ensure that contractors or employees who provide goods and services to clients’ homes are screened and that their criminal history has been assessed to determine their eligibility for work. to perform. Criminal history that may not have posed a substantial risk in delivering goods and products to brick and mortar locations may present a significantly higher risk when the final delivery location is the domicile of a customer. Meanwhile, employers have fewer applications in their pipelines and often fewer viable hiring options than before the pandemic.

Criminal background checks are the first step in a business understanding the risks posed by its staff to its customers. Once a conditional offer has been submitted to the applicant, companies should perform a pre-employment background check that includes federal, state, and county searches, sex offender registry search, and national scale and other information that may be relevant to the work, as permitted by the jurisdiction. In the event that a criminal background check reveals a criminal background, companies should conduct an individualized assessment to examine the nature of the conviction and the individualized circumstances surrounding the conviction versus the requirements of the job. Businesses should review and consider Equal Employment Opportunity Commission (“EEOC”) factors in assessing criminal history information, including: (1) the nature and seriousness of the offense or conduct; (2) the time which has elapsed since the offense, the conduct and / or the serving of the sentence; and (3) the nature of the job held or sought. Additionally, many states and cities have their own additional factors that businesses should consider before making an employment decision based on a conviction record. As an example only, New York State and New York City have an eight-factor test set out in New York Section 23-A that employers must consider before taking adverse action.

If an employer is considering taking adverse action based on their assessment of the criminal background information or any other information in the background check, the employer should follow the adverse and adverse action notice procedures set out. by the Fair Credit Reporting Act (“FCRA”) at 15 USC § 1681b (b) (3). Specifically, an employer must send a notice of adverse action to the applicant, along with a copy of the background check, a copy of the summary of rights under the FCRA, and a copy of any other notice requirements established by state or local. law. After waiting a reasonable amount of time, which the FTC has estimated at five working days but which may be longer in some states or cities, the employer can then send a notice of adverse action that cancels the conditional job offer. Employers should keep in mind that there are additional notification procedures defined by certain state and local laws that may exceed these federal requirements.

If a candidate clears the criminal background check, or if the candidate’s criminal history is unrelated to the job or poses an unreasonable risk to the client or company, the investigation does not necessarily end there. . Many employers have chosen to perform periodic background checks to ensure that throughout an employee’s employment, they are aware of any new criminal records that may develop. While companies would like to think that they would naturally be aware of charges against an employee or a conviction record, this is not necessarily the case, especially in an increasingly remote workforce. where brief absences to attend court hearings or other legal obligations may not be as obvious to the employer as in the past. Recurring background checks and monitoring are one way to make sure businesses are aware of an employee’s criminal record updates. Employers should seek legal advice to ensure that best practices are followed in conducting such recurring or other criminal background checks.

Other health and safety considerations in light of Covid-19

While criminal background checks are a key part of ensuring workplace safety, employers should also assess and implement policies regarding workplace vaccination requirements, or if they choose not to. not require vaccination, policies that ensure compliance with Biden’s new executive order and / or that otherwise meet OSHA safety standards. Every employer faces unique industry and operational factors that will affect the policies they choose to put in place. For employers in industrial industries, workplace Covid-19 outbreaks could shut down plant operations for weeks at a time, limiting supplies or significantly affecting income, and considerations must be taken to mitigate this risk.

On September 9, 2021, the Biden administration released a six-pronged Covid-19 action plan that requires large employers to require vaccinations or weekly tests for employees who work nearby, among other requirements. Specifically, private employers with 100 or more employees, federal government employees, and federal contract workers will now be subject to mandatory vaccination requirements, with a deadline of January 4, 2022 to comply with the full vaccination requirement. The executive decree is currently being challenged by 10 states which have filed a lawsuit, alleging that the demands go beyond executive power and are unconstitutional.

Employers need to know if they are subject to the new decree and put in place policies and processes to ensure compliance. If not subject to the decree, employers should take into account best practices regarding how they intend to manage vaccination requirements for their own workforce. Employers are also seeing an increase in requests for accommodation based on religion or disability from employees seeking to avoid vaccination requirements set by their employer. Employers who receive such requests should consult with legal counsel to ensure compliance with federal, state, and local laws in how they respond to such requests.

Conclusion

The economic changes caused by Covid-19 have created new challenges for businesses and, in some cases, new responsibilities for employees. Employers should assess how their internal practices align with these changes and ensure that processes are in place, from criminal background checks to other Covid-19 safety precautions, to comply with legal obligations while maintaining a venue. safe and secure work environment for employees and business continuity.

Originally posted by Sterling Check

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.