SB 76 — Limiting liability of employers in cases where certain crime convictions are expunged

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Red = new code to be enacted WEST virginia legislature regular session IntroducedCommittee Substitute for Senate Bill 76 By Senators TarrTarr, Roberts, and RobertsMaroney, [Introducedoriginal Januarysponsors 8,[Originating 2020;in the Committee on the Workforce;

referredreported on February 6, 2020] A BILL to amend the CommitteeCode onof West Virginia, 1931, as amended, by adding thereto a new section, designated §61-11-26c, relating to limiting the Workforce;civil liability of employers in cases arising out of the employee’s criminal or unlawful actions, or suitability for employment, if the misconduct or suitability relates to the criminal history record that has been expunged;

and thenauthorizing tocourt the Committee on the Judiciary] A BILL to amendpermit the Codeinspection of Westsealed Virginia,records. 1931, as amended, by adding thereto a new article, designated §62-15C-1, §62-15C-2, §62-15C-3, §62-15C-4, and §62-15C-5, all relating to limiting the liability of employers in cases where convictions for certain crimes are expunged;

requiring creation of a database record showing offenses were expunged;

requiring courts to cross-reference database for expungements;

providing that an employer is not liable to furnish health insurance or health care costs to persons whose records are expunged for drug addiction related offenses or drug addiction related diseases;

and providing exceptions.

ARTICLE 15C.11.

LIMITEDGENERAL LIABILITYPROVISIONS OFCONCERNING EMPLOYERSCRIMES. OF PERSONS WHOSE CRIMINAL RECORDS ARE EXPPUNDGED FOR DRUG ADDICTION RELATED OFFENSES.

§62-15C-1.§61-11-26c.  Employer immunity from liability.

Legislative(a) findings;An employer who employs or otherwise engages an individual whose criminal history record has been expunged pursuant to §61-11-26 or §61-11-26a of this code shall be immune from liability for any claim arising out of the employee’s criminal or unlawful actions, or suitability for employment, if the misconduct or suitability relates to the criminal history record that has been expunged.

(b) Notwithstanding the provisions of subsection (m) of §61-11-26 of this code,  inspection of the sealed records in the court’s possession may be permitted by the court upon a petition by an employer notagainst liablewhom a claim of civil liability has been brought as described in subsection (a) of this section for drugpurposes addictionof relateddefending offenseagainst a claim of employee.civil liability.

(a) The Legislature finds that potential employers may not have, or be entitled to, knowledge or information that a person applying for employment or hired for employment has had his or her criminal record for a drug addiction related offense or disease expunged.

The Legislature also finds that reliable studies indicate that there is high rate of recidivism for persons who are addicted to drugs.

In those cases, an employer should not be liable for unlawful or negligent actions of an employee who continues the use of addictive drugs or other substances after employment, nor should an employer be responsible for health care costs associated with addiction or addiction related diseases if an employee reverts to the use of such drugs or substances during the course of his or her employment.

(b) An employer, who knowingly or unknowingly participates in any return to work initiatives for recovering addicts under §62-15-1 et seq.

or §62-15A-1 et seq.

of this code or any other such program, is not liable for any civil or criminal offense committed by an employee whose drug addiction related offense or disease that is expunged under any provision of this code, or otherwise dealt with under §62-15-1 et seq.

or §62-15A-1 et seq.

of this code, while in the employ of the employer.

§62-15C-2.

Maintenance of data base for expungement of drug addiction offenses.

Notwithstanding any other provision of this code to the contrary, the Secretary of the Department of Military Affairs and Public Safety Program shall establish a database program that shall be maintained for drug addiction related offenses or diseases that are expunged under any provision of this code, or otherwise dealt with under §62-15-1 et seq., or §62-15A-1 et seq.

of this code.

The database may apply only to any return to work initiative for recovering addicts and the nature of the specific offense may not be listed.

§62-15C-3.

Courts required to cross reference database for certain expunged criminal offenses.

In the course of any civil or criminal action related to an employee who is employed under a return to work initiative for recovering addicts, an employer may ask a court to cross reference an individual against the database required by this article in order to determine if an employee charged for a civil or criminal offense is in the database.

The court shall make a cross-reference search of the database referred to in §62-15C-2 of this code and the action of an employee associated with the civil action against the employer.

An employer is not responsible for the cost of the cross-reference search.

§62-15C-4.

Employer not liable for health insurance coverage.

If an employee, who has had his or her criminal record for a drug addiction related offense or disease expunged commits an unlawful or negligent act during his or her employment, and whose employment is terminated as a result of the unlawful and negligent act, the employer is not required to provide health insurance coverage to the employee, in any situation where health care costs to the employer arise for the treatment of addiction or addiction related diseases, as a result of continued use of addicting drugs or substances by the employee.

§62-15C-5.  Waiver to provide health insurance.

An employer may not be required to sign a waiver agreeing to provide health insurance coverage for health care costs associated with addiction or addiction related diseases of an employee who has had his or her criminal record for a drug addiction related offense or disease expunged:

Provided, That an employer may voluntarily sign a waiver.

If a waiver is signed, any coverage on a health care or health insurance plan may not be denied the individual by the employer or health insurance plan.

  NOTE:

The purpose of this bill is to limit the liability of employers in cases where convictions of an employee for certain crimes are expunged.