Fayetteville Policies and Procedures  402.1 

Background Checks, Substance Abuse Testing, Medical Marijuana, and Safety-Sensitive Positions (Including Appendix – Safety Sensitive Positions)

  1. Background
    This campus policy implements UA Systemwide Policies and Procedures 470.1, Background Checks and Use of Criminal Record, Financial, and Substance Abuse-Testing Information in Employment Decisions and for Volunteers with Similar Responsibilities; Training for Positions Working with Minors. Administrators responsible for hiring activities and background checks should reference both the campus and system-wide policies. Note that this policy is intended for general guidance purposes only. State and federal statutes and regulations may provide more specific restrictions, requirements, or procedures regarding employment categories. This policy does not create any right to procedural or substantive due process of law beyond that mandated by federal and state laws, if any, nor does it create any contract rights to any applicant or employee. Furthermore, this policy is subject to all policies of the Board of Trustees of the University of Arkansas.

  2. Procedure
    1. All persons hired as employees must submit to a criminal background check. Further, all graduate student appointments into graduate assistantships will require a check.
    2. Exception: for undergraduate student workers, checks are only required for positions listed or described in Section IV.B.2 of this policy.
    3. Each position announcement will include language indicating that a criminal background check (including a registered sex offender check) is required. In addition, if a financial history check or substance abuse test is required, that information will also be included.
    4. Checks must also be conducted for volunteers with responsibilities similar to paid employees.
    5. Background checks will be conducted once a candidate becomes the finalist or one of the finalists for a position. Unless prior completion of the check is required by law for the position, hiring units may make an offer of employment that is expressly conditioned on completion of a criminal background check, financial history check, substance abuse test, or a combination of these checks that is fully satisfactory in the sole discretion of the University.
    6. For checks to be conducted by the University’s third-party background check provider, Human Resources (HR) shall supply finalists with documents to complete, which shall include a separate written authorization and notification of the individual’s rights regarding the checks. All background check/substance abuse testing requests will be submitted by HR, unless an exception has been granted by HR or provided by law. The results shall be returned to HR for initial evaluation, with any potentially disqualifying information to be reviewed, in consultation with other appropriate units as described in more detail below. The results of criminal or financial history checks and substance abuse testing[1] performed by a third-party vendor (as opposed to state agencies, such as the Arkansas State Police), are considered consumer reports and fall under the Fair Credit Reporting Act (FCRA) regulations.
    7. The expenses for background checks and substance abuse testing will be budgeted centrally, and vendor payments will be managed by Human Resources.
    8. Workday may be used to indicate the type of checks and tests required for each specific position.

  3. Safety Sensitive Positions
    Certain positions have been designated as safety sensitive positions based on applicable law or University policy considering the duties of the position. Safety sensitive positions are subject to heightened requirements with respect to background checks and are prohibited from current use of marijuana, as described below. Safety sensitive positions are defined in detail in the Appendix to this policy.

  4. Types of Background Checks; Positions Covered for Each Type of Check
    A background check is required of individuals who are final candidates for employment, being promoted, or moving to a new position (excluding faculty rank promotions) as outlined in this policy. The types of background checks include the following:
    1. Criminal (including a check for registered sex offender status)
      1. All positions (including faculty) shall have, at the minimum, a national criminal background check and a check for registered sex offender status. Criminal record checks will include a social security number validation and trace. This process validates the applicant’s social security number and helps identify the scope of the check by identifying all residences and employment within the United States. Except for law enforcement personnel, or as required by law, criminal record requests shall be limited to criminal convictions and arrests currently pending adjudication and shall not include other arrests.
      2. A county-based criminal background check and check for registered sex offender status is required for the types of positions listed below. These and any additional positions that require a county-based criminal background check and sex offender status check will be indicated in Workday.
        1. Safety sensitive positions. (See Appendix)
        2. Positions where handling cash funds, including credit card processing, is a primary job duty, provided that positions which only have access to one credit card at a time when processing or facilitating a transaction may be excluded.
        3. Positions in Finance & Administration, Advancement, Enrollment Services, Student Financial Aid, Workday, and Information Technology Services that are security sensitive at such a level that they have broad access to or permanent retention of confidential information, e.g., social security numbers or system-wide passwords (employee or student), including:
          • Positions that have the ability to view or access any information housed in enterprise systems[2] that contain sensitive information,
          • Positions that perform enterprise application development,
          • Positions that have physical and administrative access[3] to campus data infrastructure systems,
          • Positions that are “forensic” investigators including those involved in the investigation of computer or network security breaches, and
          • Positions with broad access to sensitive student information with market value, such as financial aid administrators.
        4. A person newly hired into a position with “supervisory fiduciary responsibility over all fiscal matters.”[4] These positions include the following positions:
          • Chancellor,
          • Vice Chancellor for Finance and Administration, and
          • Associate Vice Chancellor for Financial Affairs.
        5. Other senior administrators, who are assigned a level of responsibility and authority that provides broad access to sensitive or protected University information, are granted high level authority for transaction approval, are in executive positions for which there is limited supervision or oversight or whose conduct bears significantly on the University’s reputation, including the following positions:
          • Vice Chancellors,
          • Deans,
          • Vice Provosts,
          • Associate Vice Chancellors,
          • Fiscal Officers, and
          • the Executive Director of University Housing
        6. All Authorized Adults working in or with Youth Programs
      3. Criminal background checks for incumbent positions may be conducted as required by law or as specifically determined to be necessary by the Vice Chancellor responsible based on need.
    2. Financial History
      1. Financial history/credit checks include the names and addresses of the person being screened, all debts, liens, collections, bankruptcies, payment history, and charge-offs.
      2. A financial history background check is required for a final candidate for employment or promotion or other move for those positions where such information is relevant to job duties performed, including the following types of positions:
        1. Positions with extensive cash management duties, with access to cardholder data sets or access to the cardholder data processing or storage environment[5] as a primary job duty.[6]
        2. Senior administrators, including:
          • Chancellor,
          • Vice Chancellors,
          • Deans,
          • Vice Provosts,
          • Associate Vice Chancellors, and
          • Other positions, such as Fiscal Officers, which are assigned a level of responsibility and authority that provide financial oversight or are granted high level authority for transaction approval.
      3. Additional types of positions not listed above that require financial/credit checks may be indicated in Workday; however, any additional covered positions which are not otherwise mandated by this policy must be approved by the appropriate Vice Chancellor in consultation with Human Resources. Furthermore, any such checks must be job-related and a business necessity, based on a need specifically identified by University officials, or as otherwise required by law, and shall be applied in a consistent manner, in terms of type of checks and frequency, across similar positions within a given unit.
      4. Financial checks for incumbent positions may be conducted as specifically determined to be necessary by the Vice Chancellor responsible based on the need in consultation with Human Resources. Furthermore, any such checks must be job-related and a business necessity, based on a need specifically identified by University officials, or as otherwise required by law, and shall be applied in a consistent manner, in terms of type of checks and frequency, across similar positions within a given unit.
    3. Substance Abuse Testing; Positions Covered
      1. Substance abuse testing will include a urine analysis, unless an alternative, reliable method is determined in consultation with HR. Any pre-employment, pre-promotion, or pre-move substance abuse test will be a 5-panel screening unless otherwise required by law. Alteration or falsification of a substance abuse test shall be grounds for disqualification or termination. Unless specifically designated, substance abuse testing is limited to reasonable suspicion-based testing as provided for in other University policies.[7]
      2. A substance abuse test is required for a final candidate for employment or transfer for:
        1. Safety sensitive positions, as described in the Appendix and listed in Schedule A, and
        2. Senior administrators: Chancellor, Provost, Vice Chancellors, Deans, Vice Provosts, and Associate Vice Chancellors.
      3. Substance abuse tests must be job-related and a business necessity, based on a need specifically identified by University officials, or as otherwise required by law, and shall be applied in a consistent manner, in terms of type of tests and frequency, across similar positions within a given unit.
      4. Periodic substance abuse testing, or testing for incumbent positions, may be conducted as required by law or as specifically determined to be necessary by the Vice Chancellor responsible based on need in consultation with Human Resources. Furthermore, any such checks must be job-related and a business necessity, based on a need specifically identified by University officials, or as otherwise required by law, and shall be applied in a consistent manner, in terms of type of checks and frequency, across similar positions within a given unit. Positions for which substance abuse testing is required for incumbents shall be designated in Schedule A or Workday.
  5. Re-Checking of Incumbent Employees
    With respect to any positions for which re-checking is required, employees shall be required to provide a separate authorization for each round of checks/testing, unless 1) employees have specifically consented to an ongoing authorization to obtain updated checks at any time during their employment, or 2) a check is conducted as part of an employee misconduct investigation.
  6. Promotions and Transfers; Previous Background Checks; Camps
    1. Excluding faculty promotions, incumbent employees who are applicants for new positions are subject to background check requirements for the new position. To the extent permitted by law, a new check is not required if the applicant has undergone a background check of the type applicable to the position within the past two years, and the applicant has remained continuously employed, in good standing, by the University (allowing for regular seasonal breaks of six months or less) since the check was conducted.
    2. Applicants who are not continuously employed by the University or continuously enrolled as a student, in good standing, but who are rehired each year (e.g., camp employees) must have a new check conducted. K-12 school employees who have a current background check on file with his or her school district, and remain employed by the school district, may have such a background check furnished to the University, but only if it is submitted directly by the human resources office of the district, rather than by the employee.
  7. Training for Employees Working with Minors
    In addition to criminal background checks and checks for registered sex offender status, all new employees who provide care or supervision of minors as part of their job responsibilities must receive a copy of Fayetteville Policies and Procedures 217.1, Youth Protection, and the employee must acknowledge in writing that he or she has read and understands the policy. Further, the new employee must complete a live or on-line training program on protecting minors, including child maltreatment reporting, prior to the performance of job duties.
  8. Use of Results
    1. If background check/substance abuse test results indicate there are no convictions or other information that might disqualify the applicant or employee, the third-party vendor shall inform Human Resources, who in turn shall inform the hiring manager that the candidate is viable for employment or appointment to a graduate assistantship.
    2. If an appointment, employment offer, transfer, or other personnel action is not finalized within a period of thirty (30) calendar days from the date a criminal background check is completed, the University reserves the right to require a new criminal background check to be completed prior to the individual’s start or effective date.
    3. In instances where position-related adverse information is obtained, Human Resources shall review the results of the report with the hiring manager and/or senior managers within the supervisory chain for the position, in consultation with, as appropriate, General Counsel, the University of Arkansas Police Department (UAPD), and the Office of Equal Opportunity and Compliance, in order to assess the appropriateness of hiring, appointing, promoting, or transferring the individual in light of the information obtained and the duties of the position. In the context of hiring for positions utilizing a committee process, Human Resources may review the report with the relevant unit head as well as the chair of the committee.
    4. If the criminal history check reveals criminal convictions, Human Resources shall review the results of the report with the hiring manager and/or senior managers within the supervisory chain for the position, in consultation with, as appropriate, General Counsel, UAPD, and the Office of Equal Opportunity and Compliance, evaluating each conviction, including any additional information that the individual provides, before a tentative decision is made whether to disqualify the individual. The existence of a conviction does not automatically disqualify an individual from employment or appointment. Appropriate consideration shall be given to the nature and number of convictions, their dates, and the relatedness each conviction has to the duties and responsibilities of the position. The basic inquiry is whether hiring the individual, in view of his or her record, would be inconsistent with the safe and efficient performance of the functions of the position. Relevant considerations include safety of fellow employees, students, and the public, fitness for a supervisory role, and protection of property, funds, and the reputation of the University of Arkansas.
    5. If substance abuse testing results are positive, the applicant or incumbent shall be permitted to submit relevant medical information pertaining to the positive test results. All positive substance abuse tests will be reconfirmed and reviewed by a medical examiner. Additional information regarding disqualification criteria for applicants and incumbent employees is contained in the system policy.
    6. A decision to hire, appoint, promote, or otherwise transfer an applicant with adverse, job-related background check information shall require the approval of the Vice Chancellor for the division where the position is located. Persons making determinations under this policy shall document the reasons, within the standards of this policy, for the employment decision made.
    7. In the context of hiring for positions utilizing a committee process, if a final decision is made not to hire based on adverse information, the committee (including the committee chair) may be informed that the applicant was disqualified based on the background check, but detailed information shall be limited to the hiring manager and/or senior managers within the supervisory chain for the position department head, or appropriate management officials.
  9. Adverse Action Procedures
    1. If, upon review of the results of the background check or substance abuse test,[8] a tentative decision is made to disqualify an individual based on the background check/substance abuse test results, Human Resources or the background check vendor will provide the individual a pre-adverse action disclosure that includes a copy of the individual's consumer report and a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act.” When notified of the intended adverse action, the applicant or employee shall be given five business days to request, in writing, clarification or further review of the decision.
    2. After five business days, if no additional information has been presented establishing that disqualification based on the initial results of the check or test is inappropriate, the decision to disqualify the applicant may be finalized. When the decision to disqualify an individual is finalized, Human Resources or the background check vendor shall provide the individual with an adverse action notice.
    3. The adverse action notice will include
      1. Notice of the adverse action taken;
      2. The name, address, and phone number of the consumer reporting agency that supplied the report;
      3. A statement that the consumer reporting agency that supplied the report did not make the decision to take adverse action and cannot give specific reasons for the decision; and
      4. A notice of the individual's right to dispute the accuracy or completeness of any information the agency furnished, and his or her right to an additional free consumer report from the agency upon request within 60 days.
    4. In instances where the individual disputes the accuracy of the information provided by the vendor agency, the Human Resources representative may request the vendor to verify the accuracy of the information before final action is taken.
    5. If information provided by a consumer reporting agency in connection with an employee misconduct investigation forms the basis for an adverse employment action against an employee, the University or its vendor must provide an “adverse action notice” after the action is taken, together with a summary of the investigation report.
  10. Background Check Records
    Records of background checks/tests and communication to the applicant/employee concerning results will be maintained for three years from the date of any hiring decision by Human Resources, and then securely destroyed. Access to background check information shall be restricted to authorized persons with a specific, job-related need to know. Background check records shall be stored separately from other employee application or personnel files; electronic records will be stored securely in password-protected files, and any paper records will be stored in locked files in HR or an office granted exception by HR to obtain the check.
  11. Medical Marijuana
    No individual, including qualifying patients under the Arkansas Medical Marijuana Amendment of 2016, who is engaged in the current use of marijuana may be employed in a safety sensitive position. Current use of marijuana means use of marijuana that justifies the good faith belief of the University that an applicant or employee is engaging in the use of marijuana. Current use of marijuana is presumed when a positive test result for marijuana occurs.[9]

    Appendix -- Safety Sensitive Positions

  1. Safety sensitive position means any position designated in writing by the University as a safety sensitive position in which a person performing the position while under the influence of marijuana may constitute a threat to health or safety, including without limitation a position:
    1. That requires any of the following activities:
      1. Carrying a firearm;
      2. Performing life-threatening procedures;
      3. Working with confidential information or documents pertaining to criminal investigations; or
      4. Working with hazardous or flammable materials, controlled substances, food, or medicine; or
    2. In which a lapse of attention could result in injury, illness, or death, including without limitation a position that includes the operating, repairing, maintaining, or monitoring of heavy equipment, machinery, aircraft, motorized watercraft, or motor vehicles as part of the job duties.[10]
  2. The positions listed in Schedule A, below, are safety sensitive.
  3. In addition, positions designated as safety sensitive in Workday are safety sensitive.
    1. Additional positions may be listed in Schedule A and designated as safety sensitive in Workday upon approval of the appropriate vice chancellor in consultation with Human Resources based on a determination that substance-abuse tests for those positions are job-related and justified by a specifically identified business necessity or as otherwise required by law.
      1. Such determinations shall be made in a consistent manner across similar positions within a given unit.
  4. Safety sensitive position also means any position involving a safety sensitive function pursuant to federal regulations governing drug and alcohol testing adopted by the United States Department of Transportation or any other rules, guidelines, or regulations adopted by any other federal or state agency—regardless of whether the position is listed in Schedule A or designated as safety sensitive in Workday.[11]


Schedule A

  1. Residence Hall
    1. Residence hall staff including hall directors, resident assistants, and graduate assistants, and those in similar roles, including in UA-managed Greek houses.
  2. Trades Employees
    1. Boiler/chiller operators;
    2. Carpenters;
    3. Electricians (including high voltage, low voltage, and alarm electricians);
    4. Heavy equipment operators;
    5. HVAC workers;
    6. Plumbers;
    7. Power distribution workers;
    8. Utility maintenance workers, and
    9. Workers who perform locksmith duties.
  3. Environmental Positions
    1. Environmental compliance workers;
    2. Environmental Health and Safety employees;
  4. The Director of the University of Arkansas Police Department, University police, and other security positions[12];  
  5. Positions (including faculty positions) providing care or supervision to minors (excluding  youth program staff), patients, mentally ill or developmentally disabled[13]  persons, or similar populations, as a primary job duty, including, but not limited to:
    1. Childcare worker[14],  
    2. Senior leadership of the Pat Walker Health Center, health care providers such as physicians and nurses,
    3. Clinical psychologists, social workers, licensed professional counselors, and
    4. Pharmacists and pharmacy technicians;
  6. Garvan Gardens positions of Arborist and Arborist Assistant. 
  7. Staff positions, regardless of unit, designated as safety officers or those that operate facilities distributing hazardous substances; and
  8. Bus and van drivers (primary job duties), or positions which otherwise require a Commercial Driver’s License[15]. 
  9. Employees who monitor the safety of others including but not limited to, Lifeguards, Swim Instructors, and Outdoor Trip Leaders. 

Footnotes

[1] However, if testing results are reported directly by a lab, rather than by a credit report agency, FCRA requirements would not apply.

[2] Integrated large scale systems, including mainframes, servers, and peripheral devices, interconnected by a network forming a virtual centralized computing facility, such as Workday, Salesforce, and Slate, academic technologies such as learning management systems (Blackboard), research administration applications, and institutional data management resources such as the data warehouse.

[3] Access necessary for those directly responsible for the system, user account, and software maintenance, also called “root” or super user access.

[4] The check must be conducted by the Identification Bureau of the Arkansas State Police. Ark. Code Ann. § 25-1-123(b)(1).

[5] Does not include positions which only have access to point-of-sale terminals.

[6] Payment Card Industry Data Security Standard (PCIDSS) requires financial checks for all persons who have access to cardholder data sets or the cardholder data processing or storage environment.

[7] Note that substance abuse testing by employers is permissible under Act 593 of 2017, which amends, in part, Amendment 98, the Arkansas Medical Marijuana Amendment of 2016. Ark. Const. amend. XCVIII, § 3(f)(3)(B)-(C).

[8] Again, if substance abuse testing results are reported directly by a lab, FCRA requirements would not apply.

[9] See Ark. Const. amend. XCVIII, § 2(20)(B).

[10] Id. at § 2(25)(B)(ii).

[11] Id. at § 2(25)(A).

[12] Checks for law enforcement officers must include a check conducted by the Arkansas State Police. Ark. Code Ann. § 12-9-106 & Comm’n on Law Enforcement Standards and Training Rule 1002.

[13] For this policy, developmentally disabled means a significant disability attributed to mental retardation, cerebral palsy, epilepsy, autism, or related conditions.

[14] Checks for childcare workers must be conducted by Arkansas State Police and DHS Child Maltreatment registry and must be renewed at least every five years. Ark. Code Ann § 20-38-103(a) & (d).

[15] Includes any employee whose position requires driving a motor vehicle: (a) with a gross combination weight rating or gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of a towed unit or units with a gross vehicle weight rating or gross vehicle weight of more than 10,000 pounds, whichever is greater; (b) with a gross vehicle weight rating or gross vehicle weight of 26,001 pounds or more, whichever is greater; (c) designed to transport 16 or more passengers, including the driver; or (d) of any size that is used to

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