Marijuana Policy Project

Section 1. Amend Chapter 10, Title 16, Delaware Code by adding the following:

" 1019. Criminal Background Checks.

1. Purpose.

   It is the intent of the General Assembly that the primary purpose of the criminal background check and drug testing requirements of this section and 1020 is the protection of the safety and well-being of patients of hospitals licensed pursuant to 16 Del. C. Ch. 10. These sections shall be construed broadly to accomplish this purpose.

2. No employer who operates a hospital or a management company or other business entity that contracts to operate a hospital may hire any person without obtaining a report of the persons entire criminal history record from the State Bureau of Identification and a report from DHSS regarding its review of a report of the persons entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544.

3. The State Bureau of Identification shall be the intermediary for the purposes of this section, and DHSS shall be the screening point for the receipt of said federal criminal history records. DHSS shall promulgate regulations regarding the criteria for unsuitability for employment, including the types of criminal convictions which automatically disqualify a person from working in a hospital, and as to other criminal convictions, the criteria for determining whether a particular individual is unsuitable for such employment. These regulations shall also address the DHSS review of the federal criminal records, and the means for notifying employers of the results of that review.

4. Conditional Hire.

   Notwithstanding the provisions of subsection (c), the employer may hire a person on a conditional basis when the employer receives evidence that the person has requested his or her state and federal criminal history record, and has been fingerprinted by the State Bureau of Identification. Evidence for purposes of this subsection shall be a verification from the State Bureau of Identification that the person has been fingerprinted and both the state and federal criminal history records have been requested.

   The final employment of a person pursuant to this subsection shall be contingent upon the employers receipt of the State Bureau of Identification criminal history record if there are no disqualifying convictions as defined by DHSS regulations and a report by DHSS that there are no disqualifying convictions in such persons federal criminal record. Thus, an employer must immediately terminate a conditionally hired employee upon notification of the employees conviction of any disqualifying crime (as defined by DHSS regulations) whether the information is received from the State Bureau of Identification or from the DHSS report regarding the federal criminal history.

5. Any employer who hires a person for employment and fails to request and/or fails to obtain a report of the persons entire criminal history record from the State Bureau of Identification and/or a written report regarding the suitability of the person based on his or her federal criminal history shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. Any such employer shall also be subject to this penalty if he or she conditionally hires a person before receiving verification from the State Bureau of Identification that the applicant has been fingerprinted and that the State and Federal criminal background checks have been requested.

6. Notwithstanding any requirements of 11 Del. C. Ch. 85 to the contrary, the State Bureau of Identification shall furnish information to the employer pertaining to the entire Delaware criminal history record of any person to be hired to work in a hospital. Such information shall be provided to the employer and to DHSS pursuant to the procedures established by the Superintendent of the State Police. The criminal history information provided to the employer, to a hospital and to DHSS is strictly confidential. Its use is restricted to the purpose of determining suitability of a person for employment in a hospital.

7. As a condition of employment, every applicant for employment with a hospital shall provide any and all information necessary to obtain a report of the persons entire criminal history record from the State Bureau of Identification, and a report of the persons entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544. In addition, every application for employment shall contain a signed statement from the applicant that the applicant grants full release for the employer to request and obtain any such records or information contained on a criminal history record.

8. Any individual who either fails to make a full and complete disclosure on an application or a full and complete disclosure of any information required to obtain a criminal history record as required by this section, shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

9. Except as otherwise noted in this section, the costs for the State Bureau of Identification and Federal Bureau of Investigation background checks made pursuant to this section shall be borne by the State. The State shall pay such costs one time per individual in a 5-year period. Additionally, the State shall pay for any criminal background checks conducted regarding DHSS employees who serve in a regulatory or advocacy capacity regarding hospitals, again one time per individual in a 5-year period.

10. Notwithstanding any provision of this Title to the contrary, any person who has been fingerprinted and received a qualifying state and federal background check, pursuant to the terms of this section within the previous 5 years, shall be exempt from the provisions of this section. However, employers, at their own discretion and expense, shall have the right to require more frequent background checks.

1020. Mandatory Drug Testing.

1. No employer who operates a hospital, management company, other business entity contracted to operate a hospital may hire any person without first obtaining the results of such persons mandatory drug screening.

2. No person may be hired to work in a hospital unless the person submits to mandatory pre-employment drug testing, as specified by regulations promulgated by DHSS. DHSS shall promulgate regulations, regarding the pre-employment testing of all such persons, for use of the following illegal drugs:

1. Marijuana/cannabis;

2. Cocaine;

3. Opiates;

4. Phencyclidine ("PCP");

5. Amphetamines;

6. Any other illegal drug specified by DHSS, pursuant to regulations promulgated pursuant to this section.

1. Conditional Hire.

   Notwithstanding the provisions of this section, when exigent circumstances exist, and an employer must fill a position in order to maintain a required level of service, the employer may hire a person on a conditional basis when the employer receives evidence that the person has actually had the appropriate drug screening. The final employment of a person pursuant to this subsection shall be contingent upon receipt of the results of the drug screening. In addition, all persons hired pursuant to 1019 of this Title shall be informed in writing and shall acknowledge, in writing, that his/her results have been requested. Under no circumstances shall a person hired on a conditional basis pursuant to this subsection be employed on a conditional basis for more than 2 months.

2. The employer shall provide to DHSS copies of the results of any drug screening required by this section pursuant to regulation.

3. Any applicant for employment or employer who 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 for each violation."

Section 2. If any provisions of this Act or the application thereof to any person, thing, or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application. To that end, the provisions of this Act are declared to be severable.

Section 3. The regulations required by this Act shall be promulgated within six months of its enactment into law.

Section 4. This Act shall become effective six months after its enactment into law.