ENACTED LEGISLATION
ARIZONA: Fingerprint card mandatory for Department of Health IT employees/contractors
Summary: Effective August 25, 2020, the new law, SB 1504, requires every Information Technology employee or contractor of the Department of Health, or anyone who has access to vital records systems, to have a valid fingerprint clearance card issued or provide documentation that the person has applied for a fingerprint clearance card. The Department of Health may deny a position or restrict access to vital record systems if that person is denied fingerprint clearance.
Impact(s): Arizona DOH employees/contractors
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HAWAII: Ban the Box amended to include protections for ex-offenders
Summary: Effective September 15, 2020, SB 2193 prevents most private sector employers from considering felony convictions older than seven years and misdemeanor convictions older than five years, excluding periods of incarceration. This limitation does not apply to employers expressly permitted to inquire into an individual's criminal history pursuant to federal or state law. Hawaii shortened the 10-year lookback period "to reduce unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates."
Impact(s): Hawaii employers
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IOWA: The Medical Cannabidiol Act amended
Summary: On June 29, 2020, HB 2589 was amended to add a new section entitled "Employer Regulation of Marijuana Use." This allows employers to implement policies that restrict employee marijuana use to promote a healthy and safe workplace and to enforce a zero-tolerance drug policy in the workplace.
Impact(s): Iowa employers
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COURT OPINIONS
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK: Class action settled for alleged violation of Title VII of the Civil Rights Act the Fair Credit Reporting Act
Summary: Plaintiffs filed a class action against a major retailer claiming that discriminatory screening policies were used to deny job opportunities to minorities based on the concept that these populations are more likely to have criminal records as a result of discriminatory policies in the criminal justice system.

In addition to violations of the Civil Rights Act Title VII, the complaint alleged that the retailer violated the Fair Credit Reporting Act by failing to notify candidates that their criminal records were used to deny employment, without taking into account the nature of the offense included on the reports.

The class, comprised of approximately 1,200 members, consists of applicants who were denied positions between September, 2017 and January, 2020 as a result of not consenting to the retailer's online application background check. The employer agreed to pay $1.8 million and to reform background check policies. The class also seeks $600,000 for attorney fees, administration costs and incentive awards for certain plaintiffs.
Impact(s): FCRA compliance - for general legal review
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OTHER
CENTERS FOR MEDICARE AND MEDICAID SERVICES: New guidance issued regarding COVID-19 testing and long term care facilities
Summary: On August 26, 2020, The Centers for Medicare and Medicaid Services (CMS) issued State Survey Agency Directors a letter providing guidance pertaining to testing requirements in addition to a copy of the revised COVID-19 Focused Survey Tool.

Per CMS' interim final rule, requirements now include testing residents and staff at routine intervals based on the presence of COVID-19 within a specific care community. "Staff" includes employees, consultants, contractors, volunteers, caregivers, and students in nurse aide training programs or who are from affiliated academic institutions. Either rapid point-of-care (POC) diagnostic testing or offsite laboratory arrangements for testing can be utilized.

If a vendor or volunteer has already tested pursuant to the requirements of another entity, the current facility must secure documentation indicating that the test was conducted during the facility's testing frequency timeframe.

Testing is also required for staff exhibiting COVID-19 symptoms. While results are pending, affected staff members are to be restricted from entering the community. Additionally, residents who exhibit symptoms must be tested and facilities must follow CDC guidance regarding transmission-based precautions while awaiting results.

For each new positive case of COVID-19 identified in either a staff member or resident, the facility should test all other staff and residents. Those who test negative should be retested every three to seven days until no new cases are identified over a minimal period of 14 days from the date of the most recent positive result. The guidance requires for facilities to implement procedures that address those who refuse testing.

Other requirements cited include conducting tests in accordance with the appropriate regulations; obtaining an order from a physician, physician assistant, nurse practitioner or clinical nurse specialist (per state law); and maintaining safe and proper collection methods when handling specimens, including the use of personal protective equipment (PPE).

The COVID-19 Focused Survey for Nursing Homes will be utilized to assess testing compliance. As part of this process, surveyors will request that facilities produce testing documentation for review. Resident and staff records selected as a sample of the survey process will also be reviewed. As possible, surveyors should also make arrangements to observe live testing. In the event test results cannot be obtained within 48 hours or there is a shortage of testing supplies, the surveyor should ask the facility for documentation indicating that state and local health departments have been contacted to assist with those issues.
Impact(s): For general compliance review
Notice to state survey agency directors
Interim final rule

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