A recent article in Senior Housing News serves as a good reminder that changes in laws regarding background screening can impact seniors. In most cases, federal and state laws require employers to do background checks on their employees who provide direct patient care. The laws apply to “licensed communities, such as assisted living, memory care, skilled nursing and these components of continuing care retirement communities (CCRCs).” On the other hand, independent living facilities are generally unlicensed in most states, and are not subject to federal background check laws.

That’s where things get interesting for seniors. New “ban the box” laws in certain states and municipalities prohibit employers from asking about criminal backgrounds during the application and/or first interview process. Independent living companies doing business there must change their application and processes in order to comply. Unless they are exempt from the laws.

How would an employer be exempt? According to the article, “in many cases, independent living providers can find loopholes in the ban-the-box laws and prove they are exempt from them, as long as their background checks are job-related and there is legitimate need to exclude candidates with certain criminal history, such as elder abuse, fraud, theft or violent crimes. This exemption is known as a “business necessity” — in other words, the background check is necessary in order for the senior housing operator to protect its residents.”

But it’s important that independent living providers make sure that they truly are exempt, so consulting with your legal advisor would be the first step to take. Another issue to remember is that the laws do not prohibit organizations from doing background checks, but they do affect when in the hiring process the background screening can be done.