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32.1-162.9:1. Employment for compensation of persons convicted of certain offenses prohibited; criminal records check required; drug testing; suspension or revocation of license.

A. A licensed home care organization as defined in 32.1-162.7 or any home care organization exempt from licensure under subdivision 3 a or b of 32.1-162.8 or any licensed hospice as defined in 32.1-162.1 shall not hire for compensated employment, persons who have been convicted of a felony violation of a protective order as set out in 16.1-253.2, murder or manslaughter as set out in Article 1 ( 18.2-30 et seq.) of Chapter 4 of Title 18.2, malicious wounding by a mob as set out in 18.2-41, abduction as set out in subsection A or B of 18.2-47, abduction for immoral purposes as set out in 18.2-48, assaults and bodily woundings as set out in Article 4 ( 18.2-51 et seq.) of Chapter 4 of Title 18.2, robbery as set out in 18.2-58, carjacking as set out in 18.2-58.1, extortion by threat as set out in 18.2-59, threats of death or bodily injury as set out in 18.2-60, felony stalking as set out in 18.2-60.3, a felony violation of a protective order as set out in 18.2-60.4, sexual assault as set out in Article 7 ( 18.2-61 et seq.) of Chapter 4 of Title 18.2, arson as set out in Article 1 ( 18.2-77 et seq.) of Chapter 5 of Title 18.2, drive by shooting as set out in 18.2-286.1, use of a machine gun in a crime of violence as set out in 18.2-289, aggressive use of a machine gun as set out in 18.2-290, use of a sawed-off shotgun in a crime of violence as set out in subsection A of 18.2-300, pandering as set out in 18.2-355, crimes against nature involving children as set out in 18.2-361, incest as set out in 18.2-366, taking indecent liberties with children as set out in 18.2-370 or 18.2-370.1, abuse and neglect of children as set out in 18.2-371.1, failure to secure medical attention for an injured child as set out in 18.2-314, obscenity offenses as set out in 18.2-374.1, possession of child pornography as set out in 18.2-374.1:1, electronic facilitation of pornography as set out in 18.2-374.3, abuse and neglect of incapacitated adults as set out in 18.2-369, employing or permitting a minor to assist in an act constituting an offense under Article 5 ( 18.2-372 et seq.) of Chapter 8 of Title 18.2 as set out in 18.2-379, delivery of drugs to prisoners as set out in 18.2-474.1, escape from jail as set out in 18.2-477, felonies by prisoners as set out in 53.1-203, or an equivalent offense in another state.

However, a home care organization or hospice may hire an applicant convicted of one misdemeanor specified in this section not involving abuse or neglect, if five years have elapsed since the conviction.

Any person desiring to work at a licensed home care organization as defined in 32.1-162.7 or any home care organization exempt from licensure under subdivision 3 a or b of 32.1-162.8 or any licensed hospice as defined in 32.1-162.1 shall provide the hiring facility with a sworn statement or affirmation disclosing any criminal convictions or any pending criminal charges, whether within or without the Commonwealth. Any person making a materially false statement when providing such sworn statement or affirmation regarding any such offense shall be guilty upon conviction of a Class 1 misdemeanor. Further dissemination of the information provided pursuant to this section is prohibited other than to a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.

Such home care organization or hospice shall, within 30 days of employment, obtain for any compensated employees an original criminal record clearance with respect to convictions for offenses specified in this section or an original criminal history record from the Central Criminal Records Exchange. However, no employee shall be permitted to work in a position that involves direct contact with a patient until an original criminal record clearance or original criminal history record has been received, unless such person works under the direct supervision of another employee for whom a background check has been completed in accordance with the requirements of this section. The provisions of this section shall be enforced by the Commissioner. If an applicant is denied employment because of convictions appearing on his criminal history record, the home care organization or hospice shall provide a copy of the information obtained from the Central Criminal Records Exchange to the applicant.

The provisions of this section shall not apply to volunteers who work with the permission or under the supervision of a person who has received a clearance pursuant to this section.

B. A licensed home care organization as defined in 32.1-162.7 or any home care organization exempt from licensure under subdivision 3 a or b of 32.1-162.8 shall establish policies for maintaining a drug-free workplace, which may include drug testing when the employer has cause to believe that the person has engaged in the use of illegal drugs and periodically during the course of employment. All positive results from drug testing administered pursuant to this section shall be reported to the health regulatory boards responsible for licensing, certifying, or registering the person to practice, if any.

C. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.

D. A licensed home care organization or hospice shall notify and provide all students a copy of the provisions of this section prior to or upon enrollment in a certified nurse aide program operated by such home care organization or hospice.

(1992, c. 844; 1993, cc. 17, 657; 1999, c. 637; 2003, c. 517; 2006, cc. 701, 764; 2010, cc. 415, 790; 2012, c. 383; 2014, c. 129.)


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