How is the COVID-19 Pandemic Impacting Employment Background Checks?

Why are background checks taking so long during COVID-19? Pandemic precautions are impacting courts, motor vehicle departments, drug screening labs, schools and other sources of background check information, causing delays in many places.

Get answers to frequently asked questions about COVID-19 background check delays and learn how to adjust your screening process for today’s challenges.

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The COVID-19 pandemic is changing the way we approach employment background checks. Shelter-in-place orders across the world are keeping people at home, impacting your recruiting, interview, and background check processes, among many other “normal” hiring activities. You’re no longer able to meet candidates face-to-face before hiring them, underscoring the importance of completing background checks. At the same time, widespread closures may limit our ability to access necessary information like court documents and education records.

While many companies have reduced hiring or implemented a hiring freeze, there are organizations hiring as usual — and in some industries, many are even ramping up. Getting people back to work is critical, and GoodHire wants to reassure customers that we’re fully operational and ready to help you with your screening needs, whatever they may be during this time. We are currently fulfilling background screenings in nearly 90% of U.S. jurisdictions, thanks to our proprietary platform, hosted data, and instant access to digital records.

We understand that many of you have questions and concerns about your employment screening program. Here, we’ve compiled frequently asked questions to address your concerns and help you adapt your background screening program to meet today’s challenges. 

How are mandated closures impacting employment background checks? 

Global shelter-in-place orders have impacted most organizations and many processes that typically require people to leave the house, and therefore are impacting some background check processes and causing delays. 

At this time, 38% of all counties are impacted in some way due to closures, and 15% of counties are completely closed whereby records cannot be accessed.

• County criminal checks: Many county databases are digitized and so turnaround times are not affected; however, a number of county courts require a human interaction in order to access the records. This means we can still get access to the data for many of those courts through phone, mail, fax, or other online sources, but there are some delays. Some courts are fully closed and there is no way to get access until they reopen.
• Motor vehicle record (MVR) checks: With the exception of Pennsylvania, MVR checks are not experiencing delays at this time. Pennsylvania’s Department of Transportation is closed indefinitely. MVR orders need to go through their electronic system, which requires a PennDOT access code.
• Drug screening: Most drug screening labs are still open, although some are closed due to social distancing concerns or local laws. Shelter-in-place orders may preclude candidates from going into a lab if the role is considered a nonessential position.
  Update: Some labs may require candidates, upon entry, to pass a non-contact forehead temperature check and must wear a mask or face covering such as a bandana, scarf, or handmade mask. Candidates with a temperature greater than 100.3 or without a mask may be turned away for not meeting these new requirements. Please share this with all of your candidates.
• Education and employment verifications: Most education verifications are not experiencing delays; however, if an institution is closed and not part of the National Student Clearinghouse database, there may be a delay or inability to complete the check. For employment verifications, many checks can be completed online or through a digital source; however, some companies are closed and have not yet shifted resources to work-at-home employees, which may cause delays.  

What do I do if a screening cannot be completed due to a court closure? 

One option we’ve seen employers turn to is provisional hiring. That is, hiring now even though the background check hasn’t finished processing yet. This may not be possible for all employers and industries, particularly those with specific regulatory or contractual requirements that dictate how background checks must be conducted. (As always, be sure to check with your legal counsel.)

If you’re hiring for a regulated position, you can seek guidance from your regulatory agency regarding any exceptions for the extraordinary circumstances. For example, the Federal Motor Carrier Safety Administration (FMSCA) issued a temporary waiver that permits CDL drivers whose licenses expire on or after March 1, 2020, to continue to drive commercial vehicles. This waiver may not apply in all instances, so it’s important to review this with your legal counsel to ensure it applies to you.

If you have contractual requirements with your customer base that require screening before an employee can begin to work, you’ll need to review your contracts with your legal counsel. Determine if you have any flexibility with your screening requirements given the highly unprecedented circumstances.

If you’re not in a regulated industry and you don’t have contractual obligations requiring screening, you may have more flexibility in your hiring practices and you may be able to hire provisionally. 

You may also decide to prioritize certain checks over others. For example, some employers may choose to forgo employment or education verifications during this time.

If there’s a delay, do I need to process the background check request with GoodHire again or will the request hold until the court reopens?

The background check request will hold until GoodHire can complete the check. GoodHire’s platform includes built-in alerts that will automatically notify you when results are ready. We are seeing some courts reopening already.

What are the risks of provisional hiring?

If you decide to hire provisionally, this may present challenges for your HR team. As a best practice, you should outline your provisional hiring policy and other changes to your screening practices in your employment screening policy to ensure consistent treatment of all employees. In particular, you need to have a plan for how you will handle cases where criminal convictions are revealed in a background check after the employee has already started working. 

Keep in mind, the federal adverse action process still applies, as outlined by the Fair Credit Reporting Act (FCRA). A pre-adverse action notice must be sent to the employee with a five business day waiting period before final adverse action can be taken (or longer, depending on your jurisdiction). This means that if you decide to terminate an employee based on the results of the background check, you’ll need to wait five business days after sending the initial pre-adverse action notice before actually terminating the employee. This could get awkward, so it’s important to have a plan.

What happens when courts reopen and results come back after we’ve already made hiring decisions?

If you’ve already decided not to hire, you won’t need to take any action on the delayed results because you would have already followed the adverse action process as outlined by the FCRA.

If you’ve already hired, but decide to terminate an employee based on the background check results, you’ll need to initiate the adverse action process. Whether you allow the employee to continue to work during the waiting period is a question for you, your HR leadership, and your legal counsel. Tread lightly. Any change in employment conditions that adversely affects the employee — such as being put on unpaid leave — may be considered to be an adverse action in itself, which could be interpreted as a violation of the five business day waiting period.

You may also decide to continue to employ the individual if you find they have a criminal history after you’ve hired them. Just make sure this is consistent with your screening policy so all candidates and employees are treated equally — both before the pandemic and now. If the offense would have been disqualifying prior to the pandemic, you’ll want to discuss the choice to keep the individual employed with your legal counsel. It could be difficult to defend your decision to disqualify a candidate hired prior to the pandemic if you didn’t do the same for an employee hired during the pandemic with the same or similar offense.

Do I need different pre-adverse action and adverse action letters for candidates and employees?

This depends on the language of your adverse action notices. Adverse action letters may reference withdrawing an offer of employment rather than terminating an employee who has already started working. You should review your adverse action letters to be sure that the language is general enough to encompass both cases, or create a separate letter for employees that reflects termination rather than rescinding an offer.

Do I have to update my employment screening policy?

If your background screening process is changing in light of new challenges and changes facing your business, now is the perfect time to update your employment screening policy. Your policy should outline your screening practices across your organization, and should apply to all employees. However, the specific nature of the background check packages may be differentiated based on the nature of the roles you’re hiring for and the responsibility level associated with the role.

An employment screening policy should lay out:

• Which employment background checks will be conducted
• How frequently employees will be re-screened
• How particular offenses will be considered and evaluated in light of the responsibilities of a particular role
• Whether individualized assessments are conducted across all jurisdictions (even when not required by law)
• Whether you allow provisional hiring, and how you will treat provisionally-hired employees whose background check results show criminal history

If you need to change the way you screen, be sure to update your screening policy. Regardless of the circumstances, it’s a best practice to conduct regular reviews of your employment screening policy, and review it with your legal counsel.

Do I need to update or change our offer letter?

You may wish to update your offer letter to reflect any changes in your screening practices due to the pandemic. For example, if you decide to hire provisionally, you’ll want to make sure that your offer letter clearly states that the offer is still contingent on the results of the background check, even if the background check is delayed or even if the employee has already started to work before it is finished processing.

Should I initiate a self-disclosure process to learn about a candidate’s criminal history? 

Employers who need to hire quickly may turn to this option when it’s not feasible to get court data within a reasonable timeframe. Use caution, as this approach comes with its own risks. 

If you decide to ask candidates to self-disclose criminal history, it’s a best practice to do so only after a conditional offer of employment has been made. This is important to avoid violating any ban-the-box or fair chance hiring laws that may prohibit an inquiry into criminal history before this time. In certain jurisdictions, employers may not inquire about specific low-level crimes or offenses that occurred more than seven years ago. 

Consult with your legal counsel if you decide to take this approach. You will want to ensure you’re compliant, particularly if your candidate lives or works in a jurisdiction with ban-the-box or other state or local screening laws.

Are drug screening labs safe? Are they also testing for COVID-19?

It’s understandable that people don’t want to go to a lab where COVID-19 tests are being conducted. However, we’ve confirmed with our drug screening lab partners that COVID-19 collections are being done at hospitals and special collection sites, not at any Quest or LabCorp Patient Service Center. Further, COVID-19 testing is not currently being done at any Quest or LabCorp Occupational Workplace Testing Lab.

Are there alternatives to submitting a specimen at a drug screening lab?

Yes. If your workplace is still open, there are instant saliva kits available that can be sent to your workplace. Simply collect the specimens onsite, and send them to the labs. Contact our support team for details.

Do furloughed employees need to be rescreened?

Furlough is essentially another word for unpaid leave, and therefore furloughed employees are not terminated from employment with your company. Generally speaking, it’s not typical for employers to rescreen employees coming back from leave in most circumstances, whether paid or unpaid. However, screening practices may vary based on your own screening policy and your regulatory or contractual obligations. If you decide to rescreen furloughed employees after they return to work, make sure to follow FCRA disclosure and authorization requirements as you would with any applicant or employee background check.

Editor’s note: This article was updated on April 30th with the following questions and answers.

We are rehiring employees post layoff. Do we need to redo the entire background check process?

This is a business decision and may depend on your industry and the positions you’re filling, and factors such as how much time has passed since the layoff occurred may be taken into consideration. Some searches previously run, such as education and employment verifications, professional license verifications, or references would not need to be re-run a second time, as that information is not subject to change over time. However, if it is your company’s policy to conduct pre-employment background checks on new hires, then it is a good idea to implement these checks on all new hires, regardless of whether they were previously employed by your company.

We made an offer to a candidate and the background check was completed in January. Now, due to COVID-19, we have a hiring freeze. How long is a background and drug screening good for (best practices)?

While background check results do not “expire”, it is possible for the results to no longer be accurate, for example, if the person committed an offense between the time they were screened and when they start as an employee. It is a best practice to include in your company’s employment screening policy a set number of days that you will re-screen a candidate if he or she is not onboarded with the company during that time frame (between 30-90 days is a best practice). 

Can I require my employees to be screened for COVID-19 prior to returning to work? Is that discriminatory or illegal?

On April 23, the EEOC updated its COVID-19 guidance clarifying that required testing is permissible because it is consistent with business necessity and directly impacts workplace safety. While it is a best practice for employers to pay for COVID-19 “return to work” testing, there is no clear prohibition in place as of April 30, 2020, against passing this cost to employees or candidates. However, EEOC guidance does not negate current employment laws in place at the state level. Therefore, it’s critical to check your state laws to determine if you are legally able to pass the cost of COVID-19 testing on to your applicants or employees, as some states prohibit employers from passing the costs of a drug screen or background check to an employee or candidate. 

Worth noting for California-based employers is that any collection of medical information, including results of COVID-19 tests, triggers CCPA obligations around notice and data retention. Please consult your counsel for more information about data collection, medical file maintenance, and notice to employees and candidates that will be tested. 

May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19?

The EEOC has stated this is acceptable because the employer may need to determine if this employee had contact with anyone in the workplace

What happens if a check completes on a candidate, and they are hired, and then they inform us they have COVID-19?

According to CDC guidance, employers may either delay the start date or withdraw a job offer when an applicant displays symptoms or tests positive for COVID-19.

5 Ways to Speed Up the Background Check Process with GoodHire

When you need to hire quickly, GoodHire customers can take advantage of our automated capabilities to save time. These include:

• Applicant Tracking System (ATS) integrations: There’s no need to waste time switching between your different HR tech platforms. Initiate background checks from within your ATS to streamline your process and save time. 
• Digital consent: You can’t begin the background check until you have the candidate’s consent, but you may not be able to get it in person. A digital, mobile-optimized consent form helps you quickly get your candidate’s information and consent to kick off the background check process.
• Adjudication and filtering rules: Expedite the review of background check results with custom filtering and adjudication rules, which allow you to decide which records matter most to your business (and which don’t). Automated adjudication in particular helps larger employers hire quickly because it automates much of the background check review process.
• Built-in adverse action workflow: Adverse action guidelines can vary by jurisdiction, and require a waiting period of at least five business days before pre-adverse action and adverse action notices can be sent. Keep your process moving with built-in compliance that takes local laws into account, and automatic notifications when adverse action steps can be taken legally.
• Automated status notifications: Delays can happen, and you and your candidates want to be kept up-to-date on the status of your background checks. Automated status notifications for employers and candidates ensure everyone can see the current status, without you needing to log in and manually check updates.

Final Thoughts: Background Checks Are More Important Than Ever

While a small percentage of background checks may experience delays, it’s no cause to abandon the process. In fact, background checks are more important than ever as we adapt to remote operations. We may not have the opportunity to meet candidates and new employees in person, and background checks are a means to thoroughly vet new team members. This is particularly important for employers that are legally or contractually obligated to conduct background checks, or for those who wish to mitigate the risk of negligent hiring claims. 

You can continue to safely and effectively screen all job candidates and employees, even when working remotely during these challenging times. GoodHire is here to support your hiring and screening efforts, and to provide reliable, accurate background checks. Let us know how we can help — please reach out to our Customer Support team with any questions, or contact your Customer Success representative.

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