Or. Admin. Code § 575-007-0320

Current through Register Vol. 63, No. 11, November 1, 2024

Section 575-007-0320 - Fitness Determinations

(1) Fitness Determination Before Work or Placement. The Commission must not allow a subject individual to participate in training, orientation, or work activities prior to a fitness determination.

(2) Termination Following Denial. When a subject individual is denied, the individual must not be allowed to work, volunteer or be trained in an environment covered by these rules and must be terminated immediately. A denial applies only to the position and application in question.

(3) Preliminary Fitness Determination. A preliminary fitness determination must be completed prior to allowing a subject individual to be hired on a preliminary basis. The preliminary fitness determination must be made by an authorized designee. A person hired on a preliminary basis must meet all the criteria in either subsection (a) or (b) as listed below:

(a) No Indication of Potentially Disqualifying Crime. If there is no indication of a potentially disqualifying crime or condition on the OSAC Criminal Records Request form and the authorized designee or contact person has no reason to believe the subject individual has potentially disqualifying history, the subject individual may be hired on a preliminary basis.

(b) Self-Disclosed Criminal History. When a subject individual discloses a conviction or arrest for a potentially disqualifying crime in any jurisdiction, or any other potentially disqualifying condition, the individual may be hired on a preliminary basis only after a preliminary fitness determination using a weighing test is completed by an authorized designee.

(4) Final Fitness Determination. Upon receipt of the criminal history, the authorized designee must timely complete the fitness determination. The final fitness determination must be completed within 21 days after receiving the records information.

(a) This deadline may be extended in the discretion of the authorized designee.

(5) Potential Outcomes.

(a) Hiring on a Preliminary Basis. A subject individual may be hired on a preliminary basis following a preliminary fitness determination as described in section (3) of this rule.

(b) Automatic Approval. A subject individual is approved in a final fitness determination without a weighing test if after all required records information is received the subject individual meets all of the following conditions:

(A) No potentially disqualifying crimes, warrants, sex offender registration, probation or parole status, or other conditions;

(B) No unresolved arrests for potentially disqualifying crimes within the previous five years; and

(C) No discrepancies, and no failure to disclose conviction history or arrests.

(c) Weighing Test. Only authorized designees may conduct and participate in a weighing test. The weighing test must be used to assess fitness unless the subject individual receives automatic approval pursuant to subsection (5)(b) of this rule or the application is closed pursuant to subsection (5)(d) of this rule. In the weighing test, the authorized designee must consider the criminal history disclosed by the subject individual and other information as described in OAR 575-007-0280, 575-007-0290 and 575-007-0300 in order to assess fitness. When the weighing test is used in a final fitness determination, criminal history discovered during the criminal records check must also be considered. The authorized designee may rely on official written communications and records from law enforcement agencies and judicial systems, and on criminal history provided by the subject individual. Possible outcomes of a weighing test are as follows:

(A) Hiring on a Preliminary Basis. In a weighing test for a preliminary fitness determination, the outcome is either to allow, or to disallow, hiring on a preliminary basis. Hiring on a preliminary basis is not a possible outcome in a final fitness determination.

(B) Approval. A subject individual may be approved by one or more authorized designees after a weighing test.

(C) Denial. A subject individual who, following such consideration, is determined to pose a significant risk to safety or security while performing the functions covered by OAR 575-007-0220(2)(a)-(g) must be denied by the authorized designee.

(i) Volunteered History. A subject individual may be denied following a weighing test based upon potentially disqualifying history disclosed by the subject individual without conducting an Oregon, state-specific, or national criminal records check.

(ii) Discovered History. A subject individual may be denied following a weighing test based upon potentially disqualifying history discovered by the authorized designee or the Commission following an Oregon, state-specific, or national criminal records check.

(d) Closed Case.

(A) If the subject individual or Department discontinues the application or the subject individual fails to cooperate with the criminal records check process then the application is considered incomplete. Discontinuance or failure to cooperate includes, but is not limited to, the following circumstances:

(i) The subject individual refuses to be fingerprinted when required by these rules.

(ii) The subject individual does not respond within a stated period of time to a request from the authorized designee or the Commission for corrections to the application, fingerprints, any other information necessary to conduct a criminal records check under these rules, or any information described in OAR 575-007-0300.

(iii) The subject individual withdraws the application, leaves the position prior to completion of the check, or cannot be located or contacted by the authorized designee.

(iv) The subject individual is determined to not be eligible for the position or is not chosen for the position for reasons other than the criminal records check.

(B) The incomplete application is closed without a final fitness determination and there is no right to a contested case hearing.

(6) Notice to Subject Individual. Upon closure per section (5)(d) above or completion of a final fitness determination resulting in a denial, the authorized designee must provide written notice to the subject individual. The notice must be:

(a) In a format approved by the Commission, and

(b) Mailed or hand-delivered to the subject individual as soon as possible, but in no case later than fourteen days after the decision. The date of the decision must be recorded on the form. If mailed, the notice shall be mailed by regular mail to the address on the application or to an updated address provided in writing by the applicant.

(7) Documentation. Preliminary and final fitness determinations must be documented in writing.

Or. Admin. Code § 575-007-0320

OSAC 4-2006, f. & cert. ef. 11-1-06

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL

Stats. Implemented: Ch. 730 2005 OL