Proclamation of Disaster Emergency

On September 17, 2021, Iowa Governor Kim Reynolds issued a Proclamation of Disaster Emergency. It included a healthcare sector waiver of certificate of need requirements. It also allowed healthcare employers to accept new employees and allow them to begin work before their criminal background checks have been completed. Section Six of the Governor’s Proclamation provided as follows:

Pursuant to Iowa Code § 29C.6(6) and Iowa Code § 135.144(3), and in conjunction with the Iowa Department of Public Health, I continue to temporarily suspend the regulatory provisions of Iowa Code § 135B.34 and Iowa Admin Code rule 481-51.41, requiring a hospital to complete a criminal history check prior to employment of an individual, to the extent that a hospital may employ an individual once that criminal history check is submitted, pending completion.

This action is obviously prudent during a pandemic and in the midst of a tight labor market. However, careful employers should be worried about implicit bias race discrimination claims filed by those allowed to work and then rejected and terminated due to the results of the criminal background check.

The Disaster Proclamation does not provide clear immunity to a healthcare employer that takes advantage of the flexibility provided by the proclamation. On the other hand, a healthcare employer that runs the necessary criminal background check and rejects prohibited applicants before allowing them to commence work can rely upon the statutory hiring prohibition as a defense to any claim of discrimination.