Employers Will Continue to Adjust Background Check Processes in Recovery from Coronavirus (COVID-19) Pandemic

ESR Top Ten Background Check Trends
Employment Screening Resources® (ESR) Top Ten Background Check Trends for 2021

Written By Employment Screening Resources® (ESR)

Employers in the United States will continue to adjust their background check processes with workforces in the recovery from the Coronavirus (COVID-19) pandemic that has infected 100 million people worldwide and killed more than 400,000 people in America since the start of 2020, according to the “ESR Top Ten Background Check Trends” for 2021 compiled by leading global background check firm Employment Screening Resources® (ESR).

Coronavirus (COVID-19) is a potentially deadly respiratory illness that can spread from person to person. As of January 26, 2021, there are approximately 99.8 million global cases and 2.1 million global deaths, while the United States leads the world with approximately 25.2 million cases and 421,000 deaths, according to research by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).

Coronavirus has affected many aspects of the hiring and screening of workers. On March 19, 2020, due to precautions implemented by employers associated with COVID-19, the U.S. Department of Homeland Security (DHS) announced it would exercise prosecutorial discretion to defer the physical presence requirements of the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act (INA).

The Form I-9 flexibility policy – which only applies to remote workplaces – was implemented for 60 days and set to expire on May 19, 2020. The DHS extended it for 30 additional days four times to June 19, 2020, July 19, 2020, August 19, 2020, and September 19, 2020. The DHS extended the policy an additional 60 days to November 19, 2020, then extended it to the end of the year on December 31, 2020., and most recently to January 31, 2021.

On April 1, 2020, the Consumer Financial Protection Bureau (CFPB) issued a “Statement on Supervisory and Enforcement Practices Regarding the Fair Credit Reporting Act” that eased dispute deadlines under the FCRA and permitted consumer reporting agencies (CRAs) to exceed the 30-day FCRA dispute deadline due to “reductions in staff, difficulty intaking disputes, or lack of access to necessary information” caused by COVID-19.

On September 24, 2020, a coalition of 21 consumer, faith, and advocacy groups that included the National Consumer Law Center (NCLC) sent a letter to the CFPB that urged the agency to revoke the permission granted the CRAs to violate the 30-day dispute deadline. On November 9, 2020, CFPB Director Kathleen Kraninger sent a letter to the NCLC to say the CFPB would maintain guidance that eased FCRA dispute deadlines. She wrote:

“I want to make clear that all companies continue to remain responsible for FCRA compliance with dispute resolutions in a timely fashion. However, during the extraordinary times in which we find ourselves, the bureau does not intend to cite in an examination or bring an enforcement action against firms who exceed the deadlines to investigate such disputes – but only as long as efforts are made in good faith to do so as quickly as possible.”

According to the United States Public Interest Research Group (U.S. PIRG), the coalition urged the revoking of the guidance due to an increase in complaints from consumers about disputes. U.S. PIRG stated: “Consumers have lodged over 13,000 complaints just in the past six months alleging that their disputes have not been addressed within the FCRA deadline… In comparison, there were only 2,000 complaints… for the same time period in 2019.”

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted its latest updated and expanded technical assistance publication that addressed questions arising under the Federal Equal Employment Opportunity (EEO) Laws related to the Coronavirus pandemic with new information for employers and employees about COVID-19 vaccinations, according to a press release from the EEOC.

The EEOC publication – “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” – includes a new section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

The availability of COVID-19 vaccinations may raise questions about the applicability of various EEO laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act. The EEO laws do not interfere with or prevent employers from following Centers for Disease Control and Prevention (CDC) or other federal, state, and local public health authorities’ guidelines and suggestions.

Nine out of ten Human Resources (HR) leaders will still allow employees to work remotely even after a COVID-19 vaccine is widely available, according to a December 2020 survey by global research and advisory firm Gartner. Sixty percent of HR leaders surveyed said they would encourage – but not require – employees to get vaccinated and also would provide resources to employees about how and where to get vaccinated.

“HR leaders are now faced with an onslaught of questions, including if they can or should require employees to be vaccinated, what the employer’s responsibility is in helping employees and their families get vaccinated, and how the release of vaccines impacts their return-to-the-workplace strategy,” Elisabeth Joyce, vice president of advisory in the Gartner HR practice, stated in a press release about the survey.

ESR has used best practices for background check processing during the Coronavirus pandemic to help clients adjust to the new normal while operating under a business continuity plan, which in large part involved ESR employees telecommuting and working remotely in full compliance with its Written Information Security Policy. ESR recognized early on the impact of the COVID-19 outbreak on the completion of background checks.

ESR also released a white paper about COVID-19 written by ESR founder and chief executive officer (CEO) Attorney Lester Rosen that was titled “Due Diligence and Background Checks in the Age of Coronavirus – What is an Employer to Do?” to help employers deal with the Coronavirus pandemic that caused the near-total shutdown of many sectors of the economy that severely affected how and when employers hire and screen workers.

“The problem for those who are hiring, or are re-hiring laid off workers, is how to conduct pre-hire due diligence and background checks when many courts, schools, and businesses are closed – resulting in employers and educational institutions unable to respond to verification requests,” Rosen wrote, adding that Coronavirus was the largest accelerator in workplace changes while revealing the steps employers can take to screen effectively.

Employment Screening Resources® (ESR) – a leading global background check provider that was named the number one screening firm by HRO Today – uses best practices for background checks during COVID-19, offers a white paper about background checks in the Age Coronavirus, and posts blogs about how the Coronavirus affects background screening on the ESR News Blog. To learn more about ESR, visit www.esrcheck.com.

Since 2008, Employment Screening Resources® (ESR) has annually selected the “ESR Top Ten Background Check Trends” that feature emerging and influential trends in the background screening industry. Each of the top background check trends for 2021 will be announced via the ESR News Blog and listed on the ESR background check trends web page at www.esrcheck.com/Tools-Resources/ESR-Top-Ten-Background-Check-Trends/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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