This document includes House Floor Amendments incorporated into the bill on Tue, Feb 15, 2022 at 11:18 AM by pflowers.
Representative Marsha Judkins proposes the following substitute bill:


1     
FORMER OFFENDER EMPLOYMENT AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Marsha Judkins

5     
Senate Sponsor: Michael S. Kennedy

6     

7     LONG TITLE
8     General Description:
9          This bill addresses employment and licensing of a former offender as a mental health
10     professional.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates and modifies definitions;
14          ▸     when hiring a mental health professional, prohibits certain public employers and
15     public employer contractors from:
16               •     considering certain arrests or criminal convictions;
17               •     denying employment based on certain criminal convictions; and
18               •     denying certain employment based on the mental health professional's
19     participation in substance use treatment;
20          ▸     when hiring a mental health professional, prohibits a private employer from Ĥ→ [:
21               •] ←Ĥ      excluding an applicant Ĥ→ from an interview ←Ĥ for certain arrests
21a     Ĥ→ [ or] , ←Ĥ a juvenile adjudication Ĥ→ [; and] , or ←Ĥ
22     Ĥ→ [          •     making an inquiry regarding an applicant's] an ←Ĥ expunged criminal
22a     Ĥ→ [ history] offense ←Ĥ ;
23          ▸     prohibits the Division of Occupational and Professional Licensing from:
24               •     considering certain criminal convictions when taking certain actions regarding a
25     mental health professional's license; and
26               •     refusing certain mental health professionals' licenses based on participation in
27     substance use treatment; and
28          ▸     makes technical and conforming changes.
29     Money Appropriated in this Bill:
30          None
31     Other Special Clauses:
32          None
33     Utah Code Sections Affected:
34     AMENDS:
35          34-52-102, as last amended by Laws of Utah 2019, Chapter 371
36          34-52-201, as last amended by Laws of Utah 2019, Chapters 371 and 479
37          58-1-401, as last amended by Laws of Utah 2021, Chapter 404
38          58-1-501, as last amended by Laws of Utah 2020, Chapters 289 and 339
39          58-60-108, as last amended by Laws of Utah 2021, Chapter 404
40          58-60-110, as last amended by Laws of Utah 2019, Chapter 419
41     ENACTS:
42          34-52-302, Utah Code Annotated 1953
43     

44     Be it enacted by the Legislature of the state of Utah:
45          Section 1. Section 34-52-102 is amended to read:
46          34-52-102. Definitions.
47          As used in this chapter:
48          (1) "Applicant" means an individual who provides information to a public employer or
49     private employer for the purpose of obtaining employment.
50          (2) (a) "Criminal conviction" means a verdict or finding of guilt after a criminal trial or
51     a plea of guilty or nolo contendere to a criminal charge.
52          (b) "Criminal conviction" does not include an expunged criminal conviction.
53          (3) "Juvenile adjudication" means:
54          (a) a finding by a court that the facts in a petition or criminal information alleging an
55     individual committed an offense when the individual was younger than 18 years old have been
56     proved; or
57          (b) an admission or plea of no contest under Section 80-6-306.
58          (4) "Mental health professional applicant" means an individual who:
59          (a) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
60          (b) provides information to a public employer or private employer for the purpose of
61     obtaining employment that requires a license under Title 58, Chapter 60, Mental Health
62     Professional Practice Act.
63          [(3)] (5) (a) "Private employer" means a person who has one or more employees
64     employed in the same business, or in or about the same establishment, under any contract of
65     hire, express or implied, oral or written.
66          (b) "Private employer" does not include a public employer.
67          [(4)] (6) "Public employer" means an employer that is:
68          (a) the state or any administrative subunit of the state, including a department, division,
69     board, council, committee, institution, office, bureau, or other similar administrative unit of
70     state government;
71          (b) a state institution of higher education; or
72          (c) a municipal corporation, county, municipality, school district, local district, special
73     service district, or other political subdivision of the state.
74          Section 2. Section 34-52-201 is amended to read:
75          34-52-201. Public employer requirements -- Exceptions for hiring a mental health
76     professional.
77          (1) [A] Except as provided in Subsections (3) and (6), a public employer may not:
78          (a) exclude an applicant from an initial interview because of:
79          (i) a past criminal conviction[.]; or
80          (ii) if the applicant is a mental health professional applicant, because of an arrest that
81     occurred when the mental health professional was younger than 18 years old or a past juvenile
82     adjudication;
83          (b) make an inquiry related to an applicant's expunged criminal history;
84          (c) when making a hiring decision regarding a mental health professional applicant,
85     consider:
86          (i) an arrest described in Subsection (1)(a);
87          (ii) an arrest not followed by a criminal conviction or juvenile adjudication;
88          (iii) a juvenile adjudication; or
89          (iv) a past criminal conviction if:
90          (A) the mental health professional applicant's sentence for the criminal conviction
91     terminated; and
92          (B) for a criminal conviction for which the mental health professional was
93     incarcerated, at least three years have passed since the last day on which the mental health
94     professional applicant was incarcerated for the criminal conviction; or
95          (d) deny a mental health professional applicant employment based on a past criminal
96     conviction that does not bear a direct relationship to the mental health professional applicant's
97     ability to safely or competently perform the duties of employment.
98          (2) A public employer excludes an applicant from an initial interview under Subsection
99     (1)(a) if the public employer:
100          (a) requires an applicant to disclose, on an employment application, a criminal
101     conviction, or, if the applicant is a mental health professional applicant, an arrest described in
102     Subsection (1)(a) or a juvenile adjudication;
103          (b) requires an applicant to disclose, before an initial interview, a criminal conviction,
104     or, if the applicant is a mental health professional applicant, an arrest described in Subsection
105     (1)(a) or a juvenile adjudication; or
106          (c) if no interview is conducted, requires an applicant to disclose, before making a
107     conditional offer of employment, a criminal conviction[.], or, if the applicant is a mental health
108     professional, an arrest described in Subsection (1)(a) or a juvenile adjudication.
109          (3) Notwithstanding Subsection (1)(d), a public employer may not deny a mental health
110     professional applicant employment that requires the mental health professional applicant to
111     provide substance use treatment based on:
112          (a) the mental health professional applicant's participation in substance use treatment;
113     or
114          (b) a past criminal conviction for a nonviolent drug offense if:
115          (i) the mental health professional applicant's sentence for the criminal conviction
116     terminated; and
117          (ii) for a criminal conviction for which the mental health professional was incarcerated,
118     at least three years have passed since the last day on which the mental health professional
119     applicant was incarcerated for the criminal conviction.
120          [(3) (a) A public employer may not make any inquiry related to an applicant's
121     expunged criminal history.]
122          [(b)] (4) An applicant seeking employment from a public employer may answer a
123     question related to an expunged criminal record as though the action underlying the expunged
124     criminal record never occurred.
125          [(4) Subject to] (5) Except as provided in Subsections (1) through (3), [nothing in this
126     section prevents] this section does not prevent a public employer from:
127          (a) asking an applicant for information about an applicant's criminal conviction history
128     during an initial interview or after an initial interview; or
129          (b) considering an applicant's criminal conviction history when making a hiring
130     decision.
131          [(5)] (6) (a) Subsections (1) through [(3)] (4) do not apply:
132          [(a)] (i) if federal, state, or local law, including corresponding administrative rules,
133     requires the consideration of an applicant's criminal conviction history;
134          [(b)] (ii) to a public employer that is a law enforcement agency;
135          [(c)] (iii) to a public employer that is part of the criminal or juvenile justice system;
136          [(d)] (iv) to a public employer seeking a nonemployee volunteer;
137          [(e)] (v) to a public employer that works with children or vulnerable adults;
138          [(f)] (vi) to the Department of Alcoholic Beverage Control created in Section
139     32B-2-203;
140          [(g)] (vii) to the State Tax Commission;
141          [(h)] (viii) to a public employer whose primary purpose is performing financial or
142     fiduciary functions; [and] or
143          [(i)] (ix) to a public transit district hiring or promoting an individual for a safety
144     sensitive position described in Section 17B-2a-825.
145          (b) Subsections (1)(c)(iv) and (1)(d) do not apply to a criminal conviction for:
146          (i) a violent felony as defined in Section 76-3-203.5; or
147          (ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
148     Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
149          (c) Subsections (1)(a)(ii), (1)(c), (1)(d), and (3) apply to a person under contract with a
150     public employer.
151          Section 3. Section 34-52-302 is enacted to read:
152          34-52-302. Private employer requirements when hiring a mental health
153     professional.
154          (1) Except as provided in Subsection (4), a private employer may not Ĥ→ [:
155          (a)] ←Ĥ exclude a mental health professional applicant from an initial interview because of
155a     Ĥ→ : ←Ĥ
156          Ĥ→ (a) ←Ĥ an arrest that occurred when the mental health professional applicant was
156a     younger than 18
157     years old Ĥ→ [or] ;
157a          (b) ←Ĥ a juvenile adjudication; or
158          Ĥ→ [(b) make an inquiry related to a mental health professional applicant's] (c) an ←Ĥ
158a     expunged
159     criminal Ĥ→ [history] offense ←Ĥ .
160          (2) A private employer excludes a mental health professional applicant from an initial
161     interview under Subsection (1) Ĥ→ [(a)] ←Ĥ if the private employer:
162          (a) requires the mental health professional applicant to disclose, on an employment
163     application, a juvenile adjudication Ĥ→ , an expunged criminal offense, ←Ĥ or an arrest
163a     described in Subsection (1) Ĥ→ [(a)] ←Ĥ ;
164          (b) requires the mental health professional applicant to disclose, before an initial
165     interview, a juvenile adjudication Ĥ→ , an expunged criminal offense, ←Ĥ or an arrest described
165a     in Subsection (1) Ĥ→ [(a)] ←Ĥ ; or
166          (c) if no interview is conducted, requires the mental health professional applicant to
167     disclose, before making a conditional offer of employment, a juvenile adjudication Ĥ→ , an
167a     expunged criminal offense, ←Ĥ or an arrest
168     described in Subsection (1) Ĥ→ [(a)] ←Ĥ .
169          (3) Except as provided in Subsections (1) and (2), this section does not prevent a
170     private employer from:
171          (a) asking a mental health professional applicant for information about the mental
172     health professional applicant's criminal conviction history during an initial interview or after an
173     initial interview; or
174          (b) considering a mental health professional applicant's criminal conviction history
175     when making a hiring decision.
176          (4) Subsections (1) and (2) do not apply:
177          (a) if federal, state, or local law, including corresponding administrative rules, requires
178     the consideration of an applicant's criminal conviction history;
179          (b) to a private employer that is part of the criminal or juvenile justice system;
180          (c) to a private employer seeking a nonemployee volunteer;
181          (d) to a private employer that works with children or vulnerable adults; or
182          (e) to a private employer whose primary purpose is performing financial or fiduciary
183     functions.
184          Section 4. Section 58-1-401 is amended to read:
185          58-1-401. Grounds for denial of license -- Disciplinary proceedings -- Time
186     limitations -- Sanctions.
187          (1) The division shall refuse to issue a license to an applicant and shall refuse to renew
188     or shall revoke, suspend, restrict, place on probation, or otherwise act upon the license of a
189     licensee who does not meet the qualifications for licensure under this title.
190          (2) The division may refuse to issue a license to an applicant and may refuse to renew
191     or may revoke, suspend, restrict, place on probation, issue a public reprimand to, or otherwise
192     act upon the license of a licensee for the following reasons:
193          (a) subject to [the provisions of] Subsection (7), the applicant or licensee has engaged
194     in unprofessional conduct, as defined by statute or rule under this title;
195          (b) the applicant or licensee has engaged in unlawful conduct as defined by statute
196     under this title;
197          (c) the applicant or licensee has been determined to be mentally incompetent by a court
198     of competent jurisdiction; or
199          (d) subject to Subsections 58-31b-401(7), 58-60-108(2), 58-61-401(2), 58-67-401(2),
200     58-68-401(2), 58-70a-401(2), and Section 58-81-105, the applicant or licensee is unable to
201     practice the occupation or profession with reasonable skill and safety because of illness,
202     drunkenness, excessive use of drugs, narcotics, chemicals, or other type of material, or as a
203     result of a mental or physical condition, when the condition demonstrates a threat or potential
204     threat to the public health, safety, or welfare.
205          (3) A licensee whose license to practice an occupation or profession regulated by this
206     title has been suspended, revoked, placed on probation, or restricted may apply for
207     reinstatement of the license at reasonable intervals and upon compliance with conditions
208     imposed upon the licensee by statute, rule, or terms of the license suspension, revocation,
209     probation, or restriction.
210          (4) The division may issue cease and desist orders to:
211          (a) a licensee or applicant who may be disciplined under Subsection (1) or (2);
212          (b) a person who engages in or represents that the person is engaged in an occupation
213     or profession regulated under this title; and
214          (c) a person who otherwise violates this title or a rule adopted under this title.
215          (5) The division may impose an administrative penalty in accordance with Section
216     58-1-502.
217          (6) (a) The division may not take disciplinary action against a person for
218     unprofessional or unlawful conduct under this title, unless the division enters into a stipulated
219     agreement or initiates an adjudicative proceeding regarding the conduct within four years after
220     the conduct is reported to the division, except under Subsection (6)(b).
221          (b) (i) The division may not take disciplinary action against a person for unprofessional
222     or unlawful conduct more than 10 years after the occurrence of the conduct, unless the
223     proceeding is in response to a civil or criminal judgment or settlement and the proceeding is
224     initiated within one year following the judgment or settlement.
225          (ii) Notwithstanding Subsection (6)(b)(i), the division may refuse to issue a license due
226     to unprofessional or unlawful conduct that occurred more than 10 years before a request or
227     application for licensure is made.
228          (7) When the division is determining whether to refuse to issue a license to an
229     applicant, or to refuse to renew the license of a licensee, based solely on the criminal
230     conviction of an applicant or licensee, the division shall:
231          (a) provide individualized consideration to the applicant or licensee;
232          (b) except as provided in Subsection 58-60-108(2), determine whether the criminal
233     conviction bears a substantial relationship to the applicant's or licensee's ability to safely or
234     competently practice the occupation or profession; and
235          (c) consider the applicant's or licensee's current circumstances, which may include any
236     of the following:
237          (i) the age of the applicant or licensee when the applicant or licensee committed the
238     offense;
239          (ii) the time that has elapsed since the applicant or licensee committed the offense;
240          (iii) whether the applicant or licensee has completed the applicant's or licensee's
241     criminal sentence;
242          (iv) whether the applicant has completed or is actively participating in rehabilitative
243     drug or alcohol treatment;
244          (v) any testimonials or recommendations from other individuals provided by the
245     applicant or licensee, including a progress report from the applicant's or licensee's probation or
246     parole officer;
247          (vi) other evidence of rehabilitation provided by the applicant or licensee;
248          (vii) the education and training of the applicant or licensee;
249          (viii) the employment history of the applicant or licensee; and
250          (ix) other relevant information provided by the applicant or licensee.
251          Section 5. Section 58-1-501 is amended to read:
252          58-1-501. Unlawful and unprofessional conduct.
253          (1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful
254     under this title and includes:
255          (a) practicing or engaging in, representing oneself to be practicing or engaging in, or
256     attempting to practice or engage in any occupation or profession requiring licensure under this
257     title if the person is:
258          (i) not licensed to do so or not exempted from licensure under this title; or
259          (ii) restricted from doing so by a suspended, revoked, restricted, temporary,
260     probationary, or inactive license;
261          (b) (i) impersonating another licensee or practicing an occupation or profession under a
262     false or assumed name, except as permitted by law; or
263          (ii) for a licensee who has had a license under this title reinstated following disciplinary
264     action, practicing the same occupation or profession using a different name than the name used
265     before the disciplinary action, except as permitted by law and after notice to, and approval by,
266     the division;
267          (c) knowingly employing any other person to practice or engage in or attempt to
268     practice or engage in any occupation or profession licensed under this title if the employee is
269     not licensed to do so under this title;
270          (d) knowingly permitting the person's authority to practice or engage in any occupation
271     or profession licensed under this title to be used by another, except as permitted by law;
272          (e) obtaining a passing score on a licensure examination, applying for or obtaining a
273     license, or otherwise dealing with the division or a licensing board through the use of fraud,
274     forgery, or intentional deception, misrepresentation, misstatement, or omission;
275          (f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a
276     drug or device to a person located in this state:
277          (A) without prescriptive authority conferred by a license issued under this title, or by
278     an exemption to licensure under this title; or
279          (B) with prescriptive authority conferred by an exception issued under this title or a
280     multistate practice privilege recognized under this title, if the prescription was issued without
281     first obtaining information, in the usual course of professional practice, that is sufficient to
282     establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
283     proposed treatment; and
284          (ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call
285     or cross coverage situation, provided that the person who issues the prescription has
286     prescriptive authority conferred by a license under this title, or is exempt from licensure under
287     this title; or
288          (g) aiding or abetting any other person to violate any statute, rule, or order regulating
289     an occupation or profession under this title.
290          (2) "Unprofessional conduct" means conduct, by a licensee or applicant, that is defined
291     as unprofessional conduct under this title or under any rule adopted under this title and
292     includes:
293          (a) violating any statute, rule, or order regulating an occupation or profession under this
294     title;
295          (b) violating, or aiding or abetting any other person to violate, any generally accepted
296     professional or ethical standard applicable to an occupation or profession regulated under this
297     title;
298          (c) subject to [the provisions of Subsection (4),] Subsections (4) and 58-60-110(4),
299     engaging in conduct that results in conviction, a plea of nolo contendere, or a plea of guilty or
300     nolo contendere that is held in abeyance pending the successful completion of probation with
301     respect to a crime of moral turpitude or any other crime that, when considered with the
302     functions and duties of the occupation or profession for which the license was issued or is to be
303     issued, bears a substantial relationship to the licensee's or applicant's ability to safely or
304     competently practice the occupation or profession;
305          (d) engaging in conduct that results in disciplinary action, including reprimand,
306     censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory
307     authority having jurisdiction over the licensee or applicant in the same occupation or profession
308     if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary
309     proceedings under Section 58-1-401;
310          (e) engaging in conduct, including the use of intoxicants, drugs, narcotics, or similar
311     chemicals, to the extent that the conduct does, or might reasonably be considered to, impair the
312     ability of the licensee or applicant to safely engage in the occupation or profession;
313          (f) practicing or attempting to practice an occupation or profession regulated under this
314     title despite being physically or mentally unfit to do so;
315          (g) practicing or attempting to practice an occupation or profession regulated under this
316     title through gross incompetence, gross negligence, or a pattern of incompetency or negligence;
317          (h) practicing or attempting to practice an occupation or profession requiring licensure
318     under this title by any form of action or communication which is false, misleading, deceptive,
319     or fraudulent;
320          (i) practicing or attempting to practice an occupation or profession regulated under this
321     title beyond the scope of the licensee's competency, abilities, or education;
322          (j) practicing or attempting to practice an occupation or profession regulated under this
323     title beyond the scope of the licensee's license;
324          (k) verbally, physically, mentally, or sexually abusing or exploiting any person through
325     conduct connected with the licensee's practice under this title or otherwise facilitated by the
326     licensee's license;
327          (l) acting as a supervisor without meeting the qualification requirements for that
328     position that are defined by statute or rule;
329          (m) issuing, or aiding and abetting in the issuance of, an order or prescription for a
330     drug or device:
331          (i) without first obtaining information in the usual course of professional practice, that
332     is sufficient to establish a diagnosis, to identify conditions, and to identify contraindications to
333     the proposed treatment; or
334          (ii) with prescriptive authority conferred by an exception issued under this title, or a
335     multi-state practice privilege recognized under this title, if the prescription was issued without
336     first obtaining information, in the usual course of professional practice, that is sufficient to
337     establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
338     proposed treatment;
339          (n) violating a provision of Section 58-1-501.5; or
340          (o) violating the terms of an order governing a license.
341          (3) Unless otherwise specified by statute or administrative rule, in a civil or
342     administrative proceeding commenced by the division under this title, a person subject to any
343     of the unlawful and unprofessional conduct provisions of this title is strictly liable for each
344     violation.
345          (4) The following are not evidence of engaging in unprofessional conduct under
346     Subsection (2)(c):
347          (a) an arrest not followed by a conviction; or
348          (b) a conviction for which an individual's incarceration has ended more than seven
349     years before the date of the division's consideration, unless:
350          (i) after the incarceration the individual has engaged in additional conduct that results
351     in another conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is
352     held in abeyance pending the successful completion of probation; or
353          (ii) the conviction was for:
354          (A) a violent felony as defined in Section 76-3-203.5;
355          (B) a felony related to a criminal sexual act [pursuant to] under Title 76, Chapter 5,
356     Part 4, Sexual Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act; or
357          (C) a felony related to criminal fraud or embezzlement, including a felony [pursuant to]
358     under Title 76, Chapter 6, Part 5, Fraud, or Title 76, Chapter 6, Part 4, Theft.
359          Section 6. Section 58-60-108 is amended to read:
360          58-60-108. Grounds for action regarding license -- Disciplinary proceedings.
361          (1) Subject to Subsection (2), the division's grounds for refusing to issue a license to an
362     applicant, for refusing to renew the license of a licensee, for revoking, suspending, restricting,
363     or placing on probation the license of a licensee, for issuing a public or private reprimand to a
364     licensee, and for issuing a cease and desist order are under Section 58-1-401.
365          (2) The division may not:
366          (a) refuse, revoke, suspend, or in any way restrict an [applicant] applicant's or
367     licensee's license under this chapter solely because the applicant or licensee seeks or
368     participates in mental health or substance abuse treatment[.];
369          (b) refuse an applicant's license under Part 5, Substance Use Disorder Counselor Act,
370     because the applicant was convicted of a nonviolent drug offense if:
371          (i) the applicant's incarceration for the offense ended more than three years before the
372     day on which the applicant sought licensure under Part 5, Substance Use Disorder Counselor
373     Act; or
374          (ii) in the case the applicant was not incarcerated for the offense, the conviction
375     occurred more than three years before the day on which the applicant sought licensure under
376     Part 5, Substance Use Disorder Counselor Act.
377          Section 7. Section 58-60-110 is amended to read:
378          58-60-110. Unprofessional conduct.
379          (1) As used in this chapter, "unprofessional conduct" includes:
380          (a) using or employing the services of any individual to assist a licensee in any manner
381     not in accordance with the generally recognized practices, standards, or ethics of the profession
382     for which the individual is licensed, or the laws of the state;
383          (b) failure to confine practice conduct to those acts or practices:
384          (i) in which the individual is competent by education, training, and experience within
385     limits of education, training, and experience; and
386          (ii) which are within applicable scope of practice laws of this chapter;
387          (c) disclosing or refusing to disclose any confidential communication under Section
388     58-60-114 or 58-60-509; and
389          (d) a pattern of failing to offer a patient the opportunity to waive the patient's privacy
390     rights under the Standards for Privacy of Individually Identifiable Health Information, 45
391     C.F.R., Parts 160 and 164.
392          (2) "Unprofessional conduct" under this chapter may be further defined by division
393     rule.
394          (3) Notwithstanding Section 58-1-401, the division may not act upon the license of a
395     licensee for unprofessional conduct under Subsection (1)(d).
396          (4) (a) Except as provided in Subsection (4)(b), the following are not evidence of
397     engaging in unprofessional conduct under Subsection 58-1-501(2)(c):
398          (i) a conviction for which an applicant's incarceration ended more than three years
399     before the date of the division's consideration; or
400          (ii) a conviction for which the applicant was not incarcerated that occurred more than
401     three years before the date of the division's consideration.
402          (b) Subsection (4)(a) does not apply to a conviction described in Subsection
403     58-1-501(4)(b)(ii).