On February 17, 2022, employers whose employees must obtain background check clearances under Pennsylvania’s Child Protective Services Law (“CPSL”) received good news.  The Governor of Pennsylvania approved House Bill No. 764, now called Act 12 of 2022, which amends the CPSL to permit employers to hire employees on a provisional basis while the employees wait to obtain their clearances.  

In 2015, many Pennsylvania employers had to make big changes when the CPSL was amended to require certain background checks, including federal and state criminal history and child abuse clearances, for a broader variety of employees. At that time, the CPSL allowed employers to hire employees on a provisional basis for a short period of time so long as certain safeguards were met.   Subsequently, in 2019, the CPSL was amended to limit the ability to hire on a provisional basis to child care providers, eliminating provisional hiring for other employers – a change many businesses weren’t aware of.

As a result of Act 12, most employers with employees subject to CPSL clearance requirements are again permitted to hire employees provisionally.  Now, employees can be hired provisionally for a single period not to exceed 45 days, so long as the following conditions are met:

• The applicant has applied for the necessary background checks and provided a copy of the completed request forms to the employer;
• The employer has no knowledge of information that would otherwise disqualify the applicant under the CPSL;
• The applicant swears or affirms in writing they are not disqualified from employment under the CPSL;
• The employer requires that the applicant not be permitted to work alone with children and that the applicant work in the immediate vicinity of a permanent employee;
• The applicant submits the results of the background checks to the employer; and
• The employer immediately terminates the applicant if the background checks reveal that the applicant is disqualified from employment.

Notably, employers who are deemed a “child care institution” (defined as relating to the foster care maintenance payments program) may not hire employees provisionally.

This change takes effect immediately. Employers who wish to take advantage of this provisional period should be sure they are collecting a written affirmation from those employees.  Dentons’ Labor & Employment Group can assist with any questions or concerns regarding this amendment.