Pennsylvania Court Rules Background Screening Law Unconstitutional

On December 30, 2015, the Commonwealth Court in Pennsylvania unanimously found the Older Adults Protective Services Act's (the Act) lifetime prohibition on the ability of individuals with convictions to hold certain jobs in nursing homes and long-term care facilities to be unconstitutional on its face, under its interpretation of the Pennsylvania state constitution.1 Specifically, the court held that the lifetime ban provisions violate a convicted individual's due process rights because the individual is penalized for engaging in conduct that may have happened decades ago and is presumed unfit for the jobs at issue. The court also concluded that the law's lifetime ban on the ability of convicted individuals to work for these types of employers is not "substantially related" to the purpose set out in the Act, which is to protect older persons from abuse, neglect and exploitation.

Until any appeal period lapses or any appeal is decided, and while new legislation is considered, the court's decision creates substantial uncertainty for covered employers in Pennsylvania regarding disqualifying criminal record offenses.

History of the Older Adults Protective Services Act

In 1987, the Pennsylvania General Assembly enacted the Act, which was amended in 1996 to add a requirement that all applicants seeking employment in a facility covered by the Act, as well as incumbent employees with less than two years of service, submit to a criminal background check. The amendments established two categories of past criminal convictions: (1) those criminal convictions that disqualified an individual from obtaining or continuing employment regardless of the date of the conviction (category one), and (2) those criminal convictions that disqualified an individual where the conviction had occurred within the past 10 years (category two).

Category one convictions included murder, rape and sexual assault. A conviction of a category one offense imposed a lifetime ban on, or immediate discharge from, employment in an Act-covered facility. Category two crimes included, among others, felony drug violations, aggravated assault, kidnapping, arson, robbery, and felony or misdemeanor theft offenses. A conviction of a category two criminal offense imposed an employment ban for a period of 10 years. The General Assembly immediately amended the amendment to remove the 10-year ban for the category two crimes, which resulted in a lifetime ban from employment with cover facilities for both category one and two crimes.

The General Assembly also immediately amended the Act to require criminal background checks on those with less than one...