TITLE 16

Health and Safety

Mental Health

CHAPTER 51. THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Subchapter II-A. Criminal Background Checks; Mandatory Drug Testing


(a) Legislative intent. — The General Assembly's purpose in requiring criminal background checks and drug testing of Department of Health and Social Services' employees working at the Delaware Psychiatric Center is to protect the safety and well-being of the patients and staff of such facility. The provisions of this subchapter shall be broadly construed to accomplish this purpose.

(b) Definitions.

(1) "Applicant'' means any of the following:

a. A person seeking employment with the Department in any position at the Delaware Psychiatric Center; or

b. A current Department employee who seeks a promotion or transfer to any position at the Delaware Psychiatric Center; or

c. A former employee who consents prior to leaving employment to periodic review of his or her criminal background for a fixed period of time.

(2) "Background Check Center (BCC)'' means the electronic system which combines the data streams from various sources within and outside the State of Delaware in order to assist an employer in determining the suitability of a person for employment.

(3) "Criminal history'' means a report from the Department of Health and Social Services regarding its review of the applicant's entire federal criminal history from the Federal Bureau of Investigation, pursuant to Public Law 92-544 as amended (28 U.S.C. § 534) and his or her Delaware record from the State Bureau of Identification.

(4) "Department'' means the Department of Health and Social Services;

(5) "Grandfathered employee'' means an employee of a the Delaware Psychiatric Center, who was not fingerprinted pursuant to this statute because the employment commenced before June 15, 2010, and no requirement for fingerprinting has since applied (see paragraph (b)(1) of this section above).

(6) "Reasonable suspicion'' means the Department, acting through its supervisory personnel, has a reasonable basis to suspect that a Delaware Psychiatric Center employee:

a. Has been convicted of a disqualifying crime since becoming employed; or

b. Is impaired by an illegal drug.

77 Del. Laws, c. 292, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 303, § 4.;

(a) The Department shall not hire or employ an applicant for any position at the Delaware Psychiatric Center without first obtaining a report of the person's criminal history.

(b) The Department shall promulgate regulations establishing the criteria for unsuitability for employment, including the types of criminal convictions which shall automatically disqualify a person from working at the Delaware Psychiatric Center and, as to other criminal convictions, the criteria for determining whether a particular individual is unsuitable for employment at the Delaware Psychiatric Center.

(c) Conditional hire. — The requirements of subsection (a) of this section may be suspended for 60 days if the employer wishes to employ the applicant on a conditional basis. Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history. No criminal history will be issued if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge.

(d) The Department shall immediately terminate the employment any Delaware Psychiatric Center employee who is, or has been, convicted of any disqualifying crime upon notification of such conviction.

(e) The criminal history information provided to the employer, is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment at the Delaware Psychiatric Center.

(f) Before an applicant is permitted to be employed at the Delaware Psychiatric Center, the applicant must, upon request:

(1) Provide accurate information sufficient to get a criminal history;

(2) Execute a full release to enable the employer to secure a criminal history and to periodically update the criminal history while employed;

(g) An applicant who fails to comply with subsection (f) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(h) All grandfathered employees must be fingerprinted by the SBI within 120 days from the date of BCC (see § 7972(a) of Title 29) implementation. SBI:

(1) Shall use the fingerprints to establish the grandfathered employee's identity and to assign an SBI identification number for the sole purpose of enabling the person's criminal record to be monitored for new arrests while the grandfathered employee continues to work at a nursing facility or similar facility.

(2) Shall not run a state or federal background check of the grandfathered employee, unless the grandfathered employee is also an applicant as defined in § 5137(b) of this title above;

(3) Shall comply with § 1911 of Title 11.

77 Del. Laws, c. 292, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 303, § 4.;

(a) Preemployment testing. — The Department shall not hire or employ an applicant for any position at the Delaware Psychiatric Center without first obtaining the results of such applicant's mandatory drug screening.

(b) Reasonable suspicion testing. — The Department, acting through its supervisory personnel, may also conduct a drug test based on a reasonable suspicion that a Delaware Psychiatric Center employee is impaired by an illegal drug.

(c) Any person applying for employment with the Department in a position at the Delaware Psychiatric Center shall be required to submit to mandatory drug screening pursuant to this section and the regulations promulgated by the Department. Such regulations shall require drug testing for the following controlled substances:

(1) Marijuana/cannabis;

(2) Cocaine;

(3) Opiates;

(4) Phencyclidine ("PCP'');

(5) Amphetamines;

(6) Any other controlled substances specified by the Department in the regulations promulgated pursuant to this subchapter.

(d) Conditional hire. — Notwithstanding the provisions of this section, whenever exigent circumstances exist, and the Department must fill a position in order to maintain an appropriate level of patient care, the Department may hire an applicant on a conditional basis when the Department receives evidence that the applicant has actually had the appropriate drug screening. The final employment of any applicant conditionally hired pursuant to this subsection shall be contingent upon receipt of the results of the drug screening. In addition, all applicants conditionally hired pursuant to § 5138 of this title shall be informed and acknowledge in writing that the results of those applicants' drug screens have been requested. Under no circumstances shall an applicant hired on a conditional basis pursuant to this subchapter remain employed on a conditional basis for more than 2 months.

(e) Any applicant who wilfully fails to comply with the requirements of this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000.

(f) The Department shall adopt policies and procedures for imposing sanctions, which may include suspension and termination, upon any Delaware Psychiatric Center employee whose drug screen indicates that such employee has consumed an illegal drug or drugs. However, no such employee shall be sanctioned when the person has used or consumed the drug or drugs detected according to the directions and terms of a lawfully obtained prescription for such drug or drugs.

77 Del. Laws, c. 292, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 303, § 4.;