Or. Admin. Code § 407-007-0070

Current through Register Vol. 63, No. 12, December 1, 2024

Section 407-007-0070 - Final Fitness Determinations

The Department shall make a final fitness determination in accordance with OAR 125-007-0260 and this rules after all necessary criminal records checks and a weighing test, if necessary, have been completed.

(1) The Department may obtain and consider additional information as necessary to complete the final fitness determination. Particularly in weighing tests where it appears the outcome may be adverse to an SI, the Department shall attempt to obtain additional information for the weighing test from the SI directly through correspondence, phone, or both.

(2) The final fitness determination of a criminal records check, and an abuse check if required in accordance with OAR 407-007-0400 to 407-007-0460, shall result in one of the following outcomes:

(a) The Department may approve an SI if:

(A) The SI has no potentially disqualifying convictions or potentially disqualifying conditions; or

(B) The SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test with available information, the Department determines that more likely than not the SI poses no risk to the Department, its clients, or vulnerable persons.

(b) The Department may approve an SI with restrictions if, after a weighing test with available information, it determines that more likely than not that the SI poses no risk to the Department, its clients, or vulnerable persons, if certain restrictions are placed on the SI, such as but not limited to restrictions to one or more specific clients, position duties, or environments. The Department shall complete a new background check and fitness determination on the SI before removing a restriction. A fitness determination of approved with restrictions shall only be considered for the following SIs:

(A) An individual secured by the Department through the services of a temporary employment agency, staffing agency, or personnel services agency who is providing any of the duties or having access as described in OAR 407-007-0060(3).

(B) A volunteer or student under Department direction and control.

(C) A Department client who is placed in a Work Experience or JOBS Plus program at a Department site.

(D) Any individual who is required to complete a criminal records check pursuant to the statutory authority of ORS 181A.195 and 181A.200 or the authority of these rules pursuant to a contract with the Department.

(c) The Department shall deny an SI whom it determines, after a weighing test with available information, more likely than not poses a risk to the Department, its clients, or vulnerable individuals.

(d) The Department shall consider a criminal records check to have any outcome of incomplete fitness determination in the following circumstances:

(A) The Department or SI discontinues the application or the SI fails to cooperate with the criminal records check or fitness determination process, including but not limited to refusal to be fingerprinted or failing to respond in a timely manner to requests from the Department. The criminal records check request is considered closed and there are no hearing rights for the SI.

(B) BCU determines that the SI is ineligible for the position due to federal requirements, state statutes, or for reasons other than criminal history. The criminal records check request is considered closed and SI has no hearing rights.

(C) BCU or the QE withdraws or closes the background check request before a final fitness determination for any reason. The background check request is considered closed and the SI has no hearing rights.

(D) The SI withdraws the application, leaves the position prior to completion of the background check, or the Department cannot locate or contact the SI. The background check request is considered closed and the SI has no hearing rights.

(3) Upon completion of a final fitness determination, the Department shall provide the SI with written notice, which shall:

(a) Be in a Department approved format;

(b) Include information regarding appeal rights for denied or approved with restrictions outcomes if appeal is allowed. The notice shall also include a statement that it becomes a final order by default in the event of a withdrawal or a failure to participate during the appeal or hearing; and

(c) Be mailed or hand-delivered to the SI no later than 14 calendar days after the decision. The effective date of action shall be recorded on the notice.

(d) Human Resources shall also provide employees with all formal disciplinary documents and letters up to and including a letter of dismissal.

(4) When an SI is denied, the Department may not allow the SI to work, volunteer, be employed, or otherwise perform in the position listed in the criminal records check request. A denial applies only to the position in question.

(a) The process for a Department employee's removal from service or dismissal shall adhere to Department-wide Support Services discharge policies, Department of Administrative Services' Human Resource Services Division dismissal polices, and collective bargaining agreements on discharge, as applicable.

(b) For all other SIs, a denial shall result in immediate dismissal.

(5) Final fitness determinations shall be documented in writing, including any other necessary details including but not limited to restrictions in a restricted approval or potentially disqualifying crimes or conditions in a denial.

(6) The Department shall make new fitness determinations for each application. The outcome of previous fitness determinations does not set a precedent for subsequent fitness determinations.

Or. Admin. Code § 407-007-0070

DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16; DHSD 4-2016, f. 6-9-16, cert. ef. 6/15/2016; DHSD 18-2019, temporary amend filed 09/26/2019, effective 9/27/2019 through 03/24/2020; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020; DHS 5-2023, temporary amend filed 10/04/2023, effective 10/4/2023 through 3/30/2024; DHS 8-2024, amend filed 03/26/2024, effective 3/27/2024

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050

Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010