(8) "ODA" means "the Ohio department of aging."
(C) In general:
(1) Each employer and each applicant: Each employer shall request that BCII
conduct a criminal records check on each applicant. No employer shall hire
an applicant who fails to complete a form(s) and fingerprint impression sheet
under paragraph (C)(4) of this rule. No employer shall hire an applicant who
was convicted of a disqualifying offense, except under the standards of
paragraph (E) of this rule.
(2) Notification: The employer shall inform each applicant at the time of initial
application that, if the applicant comes under final consideration for
employment, he/she shall provide a set of fingerprint impressions for the
employer to use when requesting a criminal records check.
(3) FBI: If an applicant does not provide the employer with evidence that he/she
has been a resident of Ohio for the five-year period immediately preceding
the date the employer requests the criminal records check, or if the applicant
does not provide the employer with evidence that BCII has requested his/her
criminal records from the FBI within that five-year period, the employer shall
request that BCII obtain information from the FBI as part of the criminal
records check. Even if an applicant does provide the employer with evidence
that he/she has been a resident of Ohio for the five-year period, the employer
may request that BCII obtain information from the FBI as part of the criminal
records check.
(4) Forms and fingerprints: The employer shall:
(a) Provide each applicant with the form and fingerprint impression sheet
required to conduct a criminal records check, which may be tangible,
electronic (e.g., BCII's "WebCheck" program), or both tangible and
electronic. If the employer requests that BCII include information from
the FBI in the criminal records check report, the employer shall also
provide the applicant with the form necessary to obtain the FBI's
information; and,
(b) Forward the completed form(s) and fingerprint impression sheet to BCII
for processing.
(5) Fees:
(a) The employer shall pay BCII the fee prescribed under division (C)(3) of
section 109.572 of the Revised Code for each criminal records check.
(b) The employer may charge an applicant a fee so long as the fee does not
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exceed the amount the employer pays to BCII, but only if:
(i) The employer notified the applicant at the time of initial application
of the amount of the fee and that, unless the fee was paid, the
employer would not consider the applicant for employment; and,
(ii) The medical assistance program established under Chapter 5111. of
the Revised Code does not reimburse the employer for the fee.
(6) Employment-service exemption: The employer is not required to request a
criminal records check of an applicant under paragraph (C)(1) of this rule if
the applicant was referred to the employer by an employment service that
refers applicants to employers to fill full-time, part-time, or temporary
positions involving direct care and:
(a) The employment service or the applicant provides the employer with a
criminal records check report on the applicant that was conducted no
more than one year before the applicant's referral and the criminal
records check report demonstrates that the applicant was not convicted
of a disqualifying offense; or, the report demonstrates that the applicant
was convicted of a disqualifying offense, but the employer chooses to
hire the applicant under paragraph (E) of this rule; or,
(b) The employment service or the applicant provides the employer with a
letter from the employment service, that is on the employment service's
letterhead, that is dated and signed by a supervisor or another
designated official of the employment service, and that states that the
employment service has requested a criminal records check on the
applicant, that the requested criminal records check will include a
determination of whether the applicant has been convicted of a
disqualifying offense, that, as of the date set forth on the letter, the
employment service had not received the criminal records check report,
and that, when the employment service receives the report, it promptly
will send a copy of it to the employer. If the employer employs an
applicant conditionally under this paragraph, it shall also comply with
the requirements for conditional employment under paragraph (G) of
this rule.
(D) Disqualifying offenses: No employer shall hire an applicant who was convicted of
the following violations, except under the standards of paragraph (E) of this rule:
(1) A violation of section 2903.01 (aggravated murder), 2903.02 (murder), 2903.03
(voluntary manslaughter), 2903.04 (involuntary manslaughter), 2903.11
(felonious assault), 2903.12 (aggravated assault), 2903.13 (assault), 2903.16
(failing to provide for a functionally impaired person), 2903.21 (aggravated
menacing), 2903.34 (patient abuse), 2905.01 (kidnapping), 2905.02
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(abduction), 2905.11 (extortion), 2905.12 (coercion), 2907.02 (rape), 2907.03
(sexual battery), 2907.05 (gross sexual imposition), 2907.06 (sexual
imposition), 2907.07 (importuning), 2907.08 (voyeurism), 2907.09 (public
indecency), former section 2907.12 (felonious sexual penetration), 2907.25
(prostitution after positive HIV test), 2907.31 (disseminating matter harmful
to juveniles), 2907.32 (pandering obscenity), 2907.321 (pandering obscenity
involving a minor), 2907.322 (pandering sexually-oriented matter involving a
minor), 2907.323 (illegal use of minor in nudity-oriented material or
performance), 2911.01 (aggravated robbery), 2911.02 (robbery), 2911.11
(aggravated burglary), 2911.12 (burglary), 2911.13 (breaking and entering),
2913.02 (theft, aggravated theft, grand theft, grand theft of a motor vehicle),
2913.03 (unauthorized use of a vehicle), 2913.04 (unauthorized use of
property, computer, cable, or telecommunications property or service),
2913.11 (passing bad checks), 2913.21 (misuse of credit cards), 2913.31
(forgery, forging identification cards, or selling/distributing forged
identification cards), 2913.40 (medicaid fraud), 2913.43 (securing writings by
deception), 2913.47 (insurance fraud), 2913.51 (receiving stolen property),
2919.25 (domestic violence), 2921.36 (illegal conveyance of weapons, drugs,
or prohibited items onto grounds of detention facility or institution), 2923.12
(carrying concealed weapons), 2923.13 (having weapons while under
disability), 2923.161 (improperly discharging firearm at or into habitation;
school-related offenses), 2925.02 (corrupting another with drugs), 2925.03
(trafficking in drugs, aggravated trafficking in drugs), 2925.11 (aggravated
possession of drugs, possession of drugs, possession of marihuana (unless a
minor misdemeanor), possession of cocaine, possession of LSD, possession
of heroin, possession of hashish), 2925.13 (permitting drug use), 2925.22
(deception to obtain a dangerous drug), 2925.23 (illegal processing of drug
documents), or 3716.11 (placing harmful object in food or confection) of the
Revised Code; or,
(2) A violation of an existing or former law of this state, any other state, or the
United States that is substantially equivalent to any violation described in
paragraph (D)(1) of this rule.
(E) Personal character standards: If an applicant was convicted of a disqualifying offense,
the employer may use paragraphs (E)(1) and (E)(2) of this rule to determine if it is
permissible to hire the applicant:
(1) The employer shall not, under any circumstance, hire an applicant who was
convicted of a disqualifying offense, if the offense was:
(a) A violation of section 2903.01 (aggravated murder), 2903.02 (murder),
2903.03 (voluntary manslaughter), 2903.34 (patient abuse or neglect),
section 3716.11 of the Revised Code (adulteration of food), or a
violation of an existing or former law of this state, any other state, or
the United States, if the offense is substantially equivalent to any
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offense described in section 2903.01, 2903.02, 2903.03, 2903.34, or
3716.11 of the Revised Code;
(b) A sexually-oriented offense. "Sexually-oriented offense" means a
violation of section 2907.02 (rape), 2907.03 (sexual battery), 2907.05
(gross sexual imposition), or 2907.12 of the Revised Code (felonious
sexual penetration), regardless of the age of the victim; a violation of
section 2905.01 (kidnapping) or 2905.02 of the Revised Code
(abduction), if the victim was a minor; a violation of division (A)(1) or
(A)(3) of section 2907.321 of the Revised Code (pandering obscenity
involving a minor); a violation of division (A)(1) or (A)(3) of section
2907.322 of the Revised Code (pandering sexually-oriented matter
involving a minor); a violation of division (A)(1) or (A)(2) of section
2907.323 of the Revised Code (illegal use of minor in nudity-oriented
material or performance); section 2903.01 (aggravated murder),
2903.02 (murder), 2903.11 (felonious assault), or 2905.01 of the
Revised Code (kidnapping), or of division (A) of section 2903.04 of the
Revised Code (involuntary manslaughter), regardless of the age of the
victim, if the purpose was to gratify the sexual needs or desires of the
offender; a sexually-violent offense; or a violation of an existing or
former law of this state, any other state, or the United States that is
substantially equivalent to the any offense previously-listed in this
paragraph. "Sexually-violent offense" means a violent sex offense, or a
designated homicide, assault, or kidnapping offense for which the
offender also was convicted of a sexual motivation specification.
"Violent sex offense" means a violation of section 2907.02 (rape),
2907.03 (sexual battery), or 2907.12 of the Revised Code (felonious
sexual penetration) or a felonious violation of an existing or former law
of this state, any other state, or the United States that is substantially
equivalent to a violation of section 2907.02, 2907.03, or 2907.12 of the
Revised Code. "Designated homicide, assault, or kidnapping offense"
means a violation of section 2903.01 (aggravated murder), 2903.02
(murder), 2903.11 (felonious assault), or 2905.01 of the Revised Code
(kidnapping) or a violation of division (A) of section 2903.04 of the
Revised Code (involuntary manslaughter). "Sexual motivation" means a
purpose to gratify the sexual needs or desires of the offender, as
described in section 2971.01 of the Revised Code. "Sexual motivation
specification" means a specification, as described in section 2941.147
of the Revised Code, that charges that a person charged with a
designated homicide, assault, or kidnapping offense committed the
offense with a sexual motivation;
(c) A repeat theft-related offense. "Repeat theft-related offense" means a
theft-related offense by a person who was previously convicted of a
theft-related offense, or the combination of multiple theft-related
offenses in separate criminal actions. "Theft-related offense" means a
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violation of section 2911.13 (breaking and entering), 2913.02 (theft,
aggravated theft, grand theft, grand theft of a motor vehicle), 2913.03
(unauthorized use of a vehicle), 2913.04 (unauthorized use of
property--computer, cable, or telecommunications property), 2913.11
(passing bad checks), 2913.21 (misuse of credit cards), 2913.31
(forgery; identification card offenses), 2913.40 (medicaid fraud),
2913.43 (securing writings by deception), 2913.47 (insurance fraud), or
2913.51 (recovering stolen property), or a violation of existing or
former laws of this state, any other state, or the United States that are
substantially equivalent to section 2911.13, 2913.02, 2913.03, 2913.04,
2913.11, 2913.21, 2913.40, 2913.43, 2913.47, or 2913.51 of the
Revised Code. The employer shall consider multiple theft-related
offenses as one offense if the offenses are connected with the same act
or were committed at the same time;
(d) A violent offense against an older adult or a person with a disability or a
violent offense against any other person if the applicant has not been
fully discharged for a period of at least five years from the criminal
sentence resulting from the violent offence. "Criminal sentence" means
imprisonment, intensive program prison, probation, compact probation,
parole, compact parole, post-release control (PRC), transitional control,
judicial release, treatment in lieu of conviction, or a community control
sanction, as defined in rule 5120:1-5-01 of the Administrative Code.
"Violent offense" means a violation of section 2903.01 (aggravated
murder), 2903.02 (murder), 2903.03 (voluntary manslaughter), 2903.04
(involuntary manslaughter), 2903.11 (felonious assault), 2903.12
(aggravated assault), 2903.13 (assault), 2903.21 (aggravated menacing),
2905.01 (kidnapping), 2905.02 (abduction), 2905.11 (extortion),
2907.02 (rape), 2907.03 (sexual battery), 2907.12 (felonious sexual
penetration), 2911.01 (aggravated robbery), 2911.02 (robbery), 2911.11
(aggravated burglary), 2911.12 (burglary), 2919.25 (domestic violence),
or 2923.161 of the Revised Code (improperly discharging firearm at or
into habitation; school-related offenses); a violation of an existing or
former law of this state, any other state, or the United States that is
substantially equivalent to section 2903.01, 2903.02, 2903.03, 2903.04,
2903.11, 2903.12, 2903.13, 2903.21, 2905.01, 2905.02, 2905.11,
2907.02, 2907.03, 2907.12, 2911.01, 2911.02, 2911.11, 2911.12,
2919.25, or 2923.161 of the Revised Code; or, a violation of another
disqualifying offense that was committed purposely or knowingly, and
involved physical harm to another person or a risk of serious physical
harm to another person; or,
(e) A repeat-violent offense. "Repeat-violent offense" means the subsequent
offense by a person who was convicted of any violent offense. The
employer shall consider two or more repeat-violent offenses as one
offense if they are connected with the same act or were committed at
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the same time.
(2) The employer may hire an applicant who was convicted of a disqualifying
offense that is not listed under paragraph (E)(1) of this rule. To do so, the
employer shall determine the likelihood that the applicant may commit
another disqualifying offense by considering:
(a) The extent to which the position being sought could provide the applicant
with an opportunity to commit the same offense or a similar offense;
(b) The duties and responsibilities of the position being sought;
(c) The nature and seriousness of the offense;
(d) Whether or not the offense was a theft-related offense;
(e) Whether or not the offense was a violent offense;
(f) The applicant's age at the time of the offense;
(g) The degree to which the applicant participated in the offense; and,
(h) The age and ability of the victim, including whether the victim was an
individual with physical disability or an older adult. The employer
should use greater caution in hiring an applicant whose victim was an
older adult.
(i) The time elapsed since the applicant was fully discharged from any
criminal sentence;
(j) The applicant's effort to rehabilitate and the result of the effort;
(k) If a criminal proceeding is pending against the applicant;
(l) If the applicant was convicted of an offense that is not a disqualifying
offense, but bears a direct and substantial relationship to the duties and
responsibilities of the position being filled; and,
(m) Any other factor that is relevant to the performance of the job duties.
(3) It is the duty of an applicant who was convicted of a disqualifying offense to
provide sufficient evidence that he/she meets the personal character standards
under paragraph (E)(2) of this rule. If the applicant fails to do so, or if the
employer determines that the applicant's evidence is insufficient, the
employer shall not hire the applicant for a position in which the applicant
would provide direct care.
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(F) Pardons: An employer may hire an applicant who was convicted of a disqualifying
offense if:
(1) The applicant was granted an unconditional pardon for the offense under
Chapter 2967. of the Revised Code or an existing or former law of this state,
any other state, or the United States, if the law is substantially equivalent to
Chapter 2967. of the Revised Code;
(2) The applicant was granted a conditional pardon for the offense under Chapter
2967. of the Revised Code or an existing or former law of this state, any other
state, or the United States, if the law is substantially equivalent to Chapter
2967. of the Revised Code, and every condition under which the pardon was
granted is now satisfied; or,
(3) The conviction or guilty plea has been set aside pursuant to law.
(G) Conditional employment:
(1) An employer may only hire an applicant before obtaining a criminal records
check report if:
(a) The employer hires the applicant on a conditional basis;
(b) The employer initiates the process of obtaining a criminal records check
no later than five business days after the applicant begins conditional
employment; and,
(c) The applicant provides the employer with a completed fingerprint
impression sheet before the commencement of the applicant's
conditional employment.
(2) The employer shall terminate the applicant's conditional employment if:
(a) The employer does not receive a criminal records check report from BCII
in fewer than sixty days after the employer requested it from BCII; or,
(b) The employer received the criminal records check report in fewer than
sixty days and it indicates that the applicant was convicted of a
disqualifying offense, unless the employer chooses to hire the applicant
under paragraph (E) of this rule.
(3) If the conditionally-hired applicant deceived the employer about the facts
regarding his/her criminal records, the termination of the applicant's
conditional employment is just cause for discharge under division (D)(2) of
section 4141.29 of the Revised Code.
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(H) Records: In a file separate from personnel records, the employer shall maintain an
applicant log on each applicant that contains:
(1) The applicant's name;
(2) The applicant's application date;
(3) The applicant's first date of employment;
(4) The date the employer requested the criminal records check on the applicant;
(5) Whether the employer requested FBI information as part of the criminal records
check;
(6) The date the employer received the criminal records check report;
(7) Any disqualifying offense listed on the criminal records check report and the
date of that offense;
(8) The number of references the employer received on behalf of the applicant, the
dates the employer received the references, and how the employer verified the
references;
(9) Whether the applicant was conditionally hired, hired, terminated, or any
combination of the three; and,
(10) Verification that the employer considered each and every personal character
standard under paragraph (E)(2) of this rule if the employer hired an applicant
whose criminal records check report revealed that the applicant was convicted
of a disqualifying offense.
(I) Confidentiality: A criminal records check report is not a public record for the purposes
of section 149.43 of the Revised Code and the employer shall not make a report
available to any person other than:
(1) Himself/herself;
(2) The applicant who is the subject of the criminal records check or the applicant's
representative;
(3) Another chief administrator or chief administrator's designee whose facility or
program provides direct care and is owned or operated by the same entity as
the employer;
(4) A court hearing officer or other necessary person involved in a case, regarding a
denial to hire the applicant; or,
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(5) The monitoring staff of ODA, an area agency on aging, or a PASSPORT
administrative agency who, through this rule, are hereby authorized by
ODA's director to monitor an employer for compliance to this rule.
(J) Penalties: ODA may take appropriate action against an employer who violates this
rule, including terminating the employer's provider agreement under Chapters
173-3 or 173-4 of the Administrative Code or certification under Chapter 173-39 of
the Administrative Code.
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