On June 10, 2015, New York City Council passed the Fair Chance Act, which aims to create opportunities for job seekers with criminal histories. In doing so, they join 27 other states and a rapidly growing number of cities and municipalities that have passed similar legislation.

There are 9 states (HI, IL, MA, MN, NJ, OR*, RI, CT & VT) that have restricted private employers from asking conviction history questions on job applications.  This Act also compliments and references the existing state statute NY Article 23-A, which requires employers to, among other things, directly link criminal history to the position sought through an individualized assessment.

Notably, the Fair Chance Act will now require covered employers to “Ban the Box” during the application and interview process.  Specifically, NYC states that no employer can make an inquiry or ask an applicant about criminal history until the employer “has extended a conditional offer of employment to the applicant”.   Covered employers will also be required to eliminate any job advertisements indicating that criminal history will bar employment.

Also of note, the Act requires employers to perform an Article 23-A analysis referred to as the Fair Chance Act Notice of any history received, and upon making an adverse decision, provide a candidate with that analysis as well as the employer’s reasons for taking any adverse action.  Additionally, the position is to be held open for a reasonable period of time (3 days minimum) to give the candidate time to respond.

Will this provide individuals that have prior criminal history a “foot in the door” opportunity that they may otherwise not have received?  That remains to be seen.  One thing is certain, employers of all sizes need to continually review and evaluate their hiring practices to ensure they are meeting the ever-changing compliance landscape.

The HHS and SAMHSA/CSAP/DWP has published two Federal Register Notices on the proposed revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Guidelines) for Urine (URMG) and for Oral Fluid (OFMG) for the 60-day public comment period.

The OFMG establish the standards and technical requirements for:

• Oral fluid collection devices
• Initial oral fluid drug test analytes and methods
• Confirmatory oral fluid drug test analytes and methods
• Forensic acceptability of oral fluid testing

From the inception of this Program, the urine specimen was the only specimen authorized for collection and testing for a federal agency employee subject to drug testing under the Guidelines.  However, due to advances in science and technology, the OFMG will provide federal executive branch agencies with the option of collecting and testing an oral fluid specimen. The OFMG will provide flexibility for the federal agency DFWP to address unique testing needs and remove the requirement to collect only a urine specimen. Federal agencies, Medical Review Officers, and federally-regulated industries using the OFMG will continue to adhere to all other federal standards established for workplace drug testing programs.

Additionally, the proposed Guidelines will expand the testing panel for both oral fluid and urine to include four additional Schedule II prescription medications (hydrocodone, hydromorphone, oxycodone, and oxymorphone).

 

Review the Proposed Oral Fluid Mandatory Guidelines