15 Miss. Code. R. 16-1-3.5.12 - Criminal History Record Checks

The covered entity shall be required to perform a disciplinary check with the professional licensing agency, if any, for each employee to determine if any disciplinary action has been taken against the employee by the agency, and a criminal history record check on:

1. Every new employee of a covered entity who provides direct patient care or Services;

2. Except as otherwise provided in this paragraph, no employee shall be permitted to provide direct patient care until the results of the criminal history check have revealed no disqualifying record or the employee has been granted a waiver. Provided the covered entity has documented evidence of submission of fingerprints for the background check, any person may be employed and provide direct patient care on a temporary basis pending the results of the criminal history record check by any employment offer, contract, or arrangement with the person shall be voidable, if he/she receives a disqualifying criminal record check.

3. If such criminal history record check discloses a felony conviction; a guilty plea; and/or a plea of nolo contendere to a felony for one (1) or more of the following crimes which has not been reversed on appeal, or for which a pardon has not been granted, the applicant/employee shall not be eligible to be employed at the licensed facility:

a. Possession or sale of drugs

b. Murder

c. Manslaughter

d. Armed robbery

e. Rape

f. Sexual battery

g. Sex offense listed in Section 45-33-23, Mississippi Code of 1972:

h. Child abuse

i. Arson

j. Grand larceny

k. Burglary

l. Gratification of lust

m. Aggravated assault

n. Felonious abuse and/or battery of vulnerable adult

4. Documentation of verification of the employee's disciplinary status, if any, with the employee's professional licensing agency as applicable, and evidence of submission of the employee's fingerprints to the licensing agency must be on file and maintained by the facility prior to the new employees first date of employment. The covered entity shall maintain on file evidence of verification of the employee's disciplinary status from any applicable professional licensing agency and submission and/or completion of the criminal record check, the signed affidavit, if applicable, and/or a copy of the referenced notarized letter addressing the individual's suitability for such employment.

5. The covered entity may, in its discretion, allow any employee applicant aggrieved by the employment decision under this subsection to appear before the licensed entity's hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the employee or employee applicant to be employed at the covered entity. The covered entity, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances, which shall include, but not be limited to:

(1) age at which the crime was committed;

(2) circumstances surrounding the crime;

(3) length of time since the conviction and criminal history since the conviction;

(4) work history;

(5) current employment and character references; and

(6) other evidence demonstrating that the individual does not pose a threat to the health or safety of the patients in the licensed facility.

6. The licensing agency may charge the covered entity submitting the fingerprints a fee not to exceed Fifty Dollars ($50.00).

7. Should results of an employee applicant's criminal history record check reveal no disqualifying event, then the covered entity shall, within two (2) weeks of the notification of no disqualifying, event provide the employee applicant with a notarized letter signed by the chief executive officer of the covered entity, or his or her authorized designee, confirming the employee applicant's suitability for employment based on his or her criminal history record check. An employee applicant may use that letter for a period of two (2) years from the date of the letter to seek employment at any covered entity licensed by the Mississippi Department of Health without the necessity of an additional criminal record check. Any covered entity presented with the letter may rely on the letter with respect to an employee applicant's criminal background and is not required for a period of two (2) years from the date of the letter to conduct or have conducted a criminal history record check as required in this subsection.

8. For individuals contracted through a third party who provide direct patient care as defined herein, the covered entity shall require proof of a criminal history record check.

9. The licensing agency, the covered entity, and their agents, officers, employees, attorneys and representatives, shall be presumed to be acting in good faith for any employment decision or action taken under this section. The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. No licensing agency, covered entity, nor their agents, officers, employees, attorneys and representatives shall be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this section.

Notes

15 Miss. Code. R. 16-1-3.5.12

Mississippi Code Annotated § 43-13-117 and § 43-11-13

Amended 5/19/2019