Or. Admin. Code § 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.
Notes
Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
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