Current through Register Vol. 63, No. 9, September 1, 2024
(1)
Fitness Determination Before Work or Placement. The Commission must not allow a
subject individual to participate in training, orientation, or work activities
prior to a fitness determination.
(2) Termination Following Denial. When a
subject individual is denied, the individual must not be allowed to work,
volunteer or be trained in an environment covered by these rules and must be
terminated immediately. A denial applies only to the position and application
in question.
(3) Preliminary
Fitness Determination. A preliminary fitness determination must be completed
prior to allowing a subject individual to be hired on a preliminary basis. The
preliminary fitness determination must be made by an authorized designee. A
person hired on a preliminary basis must meet all the criteria in either
subsection (a) or (b) as listed below:
(a) No
Indication of Potentially Disqualifying Crime. If there is no indication of a
potentially disqualifying crime or condition on the OSAC Criminal Records
Request form and the authorized designee or contact person has no reason to
believe the subject individual has potentially disqualifying history, the
subject individual may be hired on a preliminary basis.
(b) Self-Disclosed Criminal History. When a
subject individual discloses a conviction or arrest for a potentially
disqualifying crime in any jurisdiction, or any other potentially disqualifying
condition, the individual may be hired on a preliminary basis only after a
preliminary fitness determination using a weighing test is completed by an
authorized designee.
(4)
Final Fitness Determination. Upon receipt of the criminal history, the
authorized designee must timely complete the fitness determination. The final
fitness determination must be completed within 21 days after receiving the
records information.
(a) This deadline may be
extended in the discretion of the authorized designee.
(5) Potential Outcomes.
(a) Hiring on a Preliminary Basis. A subject
individual may be hired on a preliminary basis following a preliminary fitness
determination as described in section (3) of this rule.
(b) Automatic Approval. A subject individual
is approved in a final fitness determination without a weighing test if after
all required records information is received the subject individual meets all
of the following conditions:
(A) No
potentially disqualifying crimes, warrants, sex offender registration,
probation or parole status, or other conditions;
(B) No unresolved arrests for potentially
disqualifying crimes within the previous five years; and
(C) No discrepancies, and no failure to
disclose conviction history or arrests.
(c) Weighing Test. Only authorized designees
may conduct and participate in a weighing test. The weighing test must be used
to assess fitness unless the subject individual receives automatic approval
pursuant to subsection (5)(b) of this rule or the application is closed
pursuant to subsection (5)(d) of this rule. In the weighing test, the
authorized designee must consider the criminal history disclosed by the subject
individual and other information as described in OAR
575-007-0280,
575-007-0290 and
575-007-0300 in order to assess fitness. When the weighing test is used in a final fitness
determination, criminal history discovered during the criminal records check
must also be considered. The authorized designee may rely on official written
communications and records from law enforcement agencies and judicial systems,
and on criminal history provided by the subject individual. Possible outcomes
of a weighing test are as follows:
(A) Hiring
on a Preliminary Basis. In a weighing test for a preliminary fitness
determination, the outcome is either to allow, or to disallow, hiring on a
preliminary basis. Hiring on a preliminary basis is not a possible outcome in a
final fitness determination.
(B)
Approval. A subject individual may be approved by one or more authorized
designees after a weighing test.
(C) Denial. A subject individual who,
following such consideration, is determined to pose a significant risk to
safety or security while performing the functions covered by OAR
575-007-0220(2)(a)-(g)
must be denied by the authorized designee.
(i) Volunteered History. A subject individual
may be denied following a weighing test based upon potentially disqualifying
history disclosed by the subject individual without conducting an Oregon,
state-specific, or national criminal records check.
(ii) Discovered History. A subject individual
may be denied following a weighing test based upon potentially disqualifying
history discovered by the authorized designee or the Commission following an
Oregon, state-specific, or national criminal records check.
(d) Closed Case.
(A) If the subject individual or Department
discontinues the application or the subject individual fails to cooperate with
the criminal records check process then the application is considered
incomplete. Discontinuance or failure to cooperate includes, but is not limited
to, the following circumstances:
(i) The
subject individual refuses to be fingerprinted when required by these
rules.
(ii) The subject individual
does not respond within a stated period of time to a request from the
authorized designee or the Commission for corrections to the application,
fingerprints, any other information necessary to conduct a criminal records
check under these rules, or any information described in OAR
575-007-0300.
(iii) The subject individual withdraws the
application, leaves the position prior to completion of the check, or cannot be
located or contacted by the authorized designee.
(iv) The subject individual is determined to
not be eligible for the position or is not chosen for the position for reasons
other than the criminal records check.
(B) The incomplete application is closed
without a final fitness determination and there is no right to a contested case
hearing.
(6)
Notice to Subject Individual. Upon closure per section (5)(d) above or
completion of a final fitness determination resulting in a denial, the
authorized designee must provide written notice to the subject individual. The
notice must be:
(a) In a format approved by
the Commission, and
(b) Mailed or
hand-delivered to the subject individual as soon as possible, but in no case
later than fourteen days after the decision. The date of the decision must be
recorded on the form. If mailed, the notice shall be mailed by regular mail to
the address on the application or to an updated address provided in writing by
the applicant.
(7)
Documentation. Preliminary and final fitness determinations must be documented
in writing.
Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
