Let the people go to work

Elizabeth Newman
Elizabeth Newman

The news that Pennsylvania may have to loosen its ban on those with criminal histories working in nursing homes could seem scary, but is actually good news.

Back in the bygone era of 1987, the state decided older adults needed additional protection from exploitation, neglect and abuse. Nearly 10 years later, it added a clause that said those applying to a long-term care facility or those who had been there less than two years needed to submit to a criminal history records check.

Criminal convictions that would disqualify an individual forever included murder, rape, sexual assault — basically crimes where you would never want someone convicted working among the frail or elderly. The second category of crimes included felony drug violations, arson, robbery or felony or misdemeanor theft offenses; a conviction in this category resulted in a 10-year employment ban.  That category was expanded, and also amended the scope of the ban, requiring all applicants and employees working in an Older Adults Protective Services Act facility to submit a criminal history report if they'd worked at the facility for less than a year.

Let's assume all of this was reasonably well-intentioned rather than a play by politicians to create laws designed to garner votes. But consider that facilities that didn't comply with the requirements faced fines. Who would want to risk wading through which crimes may or may not be under the ban?

Fast forward through various court cases, including one that said the ban was unconstitutional specifically for the petitioners in that case, and we land in the most recent opinion on the act from the Commonwealth Court, issued last week. This case involves petitioners that included a man who rode in a stolen car as a teenager, and another convicted of writing bad checks.

It's easy to say, “Well, they messed up.” But the petitioners included 48-year-old Desmond Lowe, who worked in maintenance, cleaning and food services at a nursing home and the Children's Hospital of Philadelphia. In 1999, he borrowed a car from a friend, was pulled over, and learned the car was stolen. Not wanting to lose his job due to a trial, Lowe pleaded guilty to a charge of theft by receiving stolen property and served two years of probation, court records state, with no further problems.

But in 2014, when he was let go at Walmart, he applied as a kitchen worker at his former nursing home and was told he couldn't be hired because of the ban.

In 2012, the EEOC issued a guidance policy noting “criminal history employment exclusions have a disparate racial impact and recommending that prospective employers assess employment eligibility by considering the nature of the crime, the time elapsed, and the nature and requirements of the particular job,” the court noted. Let's acknowledge how many people of privilege are given second chances all the time, even those who don't deserve it, such as “affluenza teen” Ethan Couch, who murdered four people through his drunk driving. There are far more plenty of people in the same boat as the Pennsylvania petitioners, who either hurt no one (riding in a stolen car, drug possession) or who got into a fight on a basketball court and were charged with assault.

This particular type of ban is bad for everyone. For those people who want to stay on track and work, we're denying them the chance to hold an honest, even honorable job. For nursing homes, it narrows a poll that desperately needs workers who will take hard, low-paying jobs. As the court noted, “Employers are stripped of discretion in these respects.” For the larger community, this type of ban creates middle-aged disillusioned citizens who can't pay their bills or contribute to society through work.

The court concurred with this, noting the state's lifetime employment ban violates several constitutional precepts.

“The Act's lifetime employment ban provision is unconstitutional on its face,” it ruled.

Let he who is without sin cast the first stone, and let's remember how many of us did stupid stuff as young adults. Every state varies in its regulations around nursing homes and criminal convictions, but let's hope the PA court case will prompt other state lawmakers to review their laws.  

Elizabeth Newman is Senior Editor at McKnight's. Follow her @TigerELN.

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Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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