Published in the December, 2019 issue of the PELRAS newsletter
Published on: Fri 13th Dec, 2019 By: Julie A. Aquino
In late 2014, the Pennsylvania General Assembly made sweeping changes to the Child Protective Services Law (“CPSL”), largely as a response to the Jerry Sandusky case. These changes impacted, among others, all paid employees and unpaid volunteers in Pennsylvania who have “direct contact with children” or who are responsible for the welfare of a child. 23 Pa.C.S. §§6344(a)(4), 6344.2(a). The law defines “direct contact with children” as “[t]he care, supervision, guidance or control of children and routine interaction with children.” The law defines “child” as an individual under 18 years of age. 23 Pa.C.S. §6303.
The CPSL requires that employees who have “direct contact” with children obtain certain background clearances prior to beginning work, and those clearances must be renewed within sixty (60) months from the last clearance. If an organization elects to renew all clearances at the same time, the date of the oldest clearance, rather than the most recent, is the date to be used for the renewal date. Therefore, if your organization began requiring clearances for certain employees when the CPSL was amended in 2015, it is time for your organization to be looking at compliance with the sixty (60) month deadline for employees to submit renewed clearances.
The following three clearances are required: (1) criminal history record obtained by the Pennsylvania State Police ($22); (2) child abuse clearance obtained through the PA Department of Human Services ($13); and, (3) federal criminal history record obtained by submitting a full set of fingerprints for submission to the FBI ($23.85). Volunteers living in Pennsylvania consecutively for ten (10) years can be exempted from the federal criminal history check if they have not been convicted of any disqualifying offense. Clearances obtained for volunteer purposes cannot be used for employment purposes, although clearances for employment purposes may be used for volunteer purposes.
The CPSL was again amended in 2019 (effective December 31, 2019) and the amendment removed the provisional period for employees who have direct contact with children to work for up to ninety (90) days prior to obtaining the required clearances. This ninety (90) day provisional period was removed from the law, meaning that employers must be in possession of the required clearances at the time an employee with direct contact with children begins employment, and not afterward. (See Act 47 of 2019). If your organization operates a child day care center, there is a limited exception for the Department of Human Services to grant a waiver for provisional hires upon request.
While it is the employee who is obligated to submit the clearances to the employer, the employer must require the employee to produce the original prior to employment or service, and must retain a copy in a separate file. An employer, including administrators, supervisors or other persons responsible for employment decisions, who intentionally fails to require an applicant to submit the required information before the applicant’s hiring commits a third degree misdemeanor. The CPSL does not require employers to pay the cost of the clearances, although employers may opt to do so.
Your organization should ensure that it has identified all employees and volunteers who have “direct contact with children” or are responsible for the welfare of a child. Municipalities with recreation programs surely employ such individuals, and school crossing guards may also fall into this category. (Employers should also consider whether they employ minors during the summer months and which adult employees supervise, and have routine interaction with, those minors). Questions about which employees are required to submit clearances under the CPSL should be directed to legal counsel. These clearances are to be maintained confidentially under the CPSL and are not subject to the Right to Know Law.
Lastly, what happens if an employee has a conviction in their record, or is arrested for a particular offense? The CPSL enumerates certain convictions that constitute grounds for denying an applicant employment or volunteer work. The CPSL does not directly address discipline or termination for a current employee, and, therefore, that presents a more difficult question. The CPSL requires employees and volunteers to self-report certain arrests, convictions and child abuse investigations by written notice within seventy-two (72) hours. An individual who willfully fails to report this information commits a third degree misdemeanor and shall be subject to discipline up to an including termination. Convictions or arrests of current employees must be addressed by the employer on a case-by-case basis, e.g., investigated by the employer as would be done with any personnel matter potentially resulting in discipline.