Preemployment Screening and Testing: Rhode Island
Federal law and guidance on this subject should be reviewed together with this section.
Author: Jessica Sussman
- Rhode Island employers may not inquire about an applicant's arrest record subject to very limited exceptions. See Arrest and Conviction Records.
- Certain types of employers must conduct background checks of job applicants as a condition of employment. See Mandatory Background Checks.
- Employers should be aware that Rhode Island recognizes a cause of action for negligent hiring. See Negligent Hiring.
- Rhode Island law is strict when it comes to regulating drug testing by employers. See Drug Testing.
- The Ocean State bans employers from engaging in certain other preemployment tests. See Genetic Testing.
Employers that choose a third party to perform a background check of job applicants should be familiar with the federal Fair Credit Reporting Act and its notice and consent requirements. See Recruiting and Hiring > Preemployment Screening and Testing > Fair Credit Reporting Act (FCRA).
When conducting background checks and other preemployment screening steps, employers also must be cognizant of the State Fair Employment Practices Act (FEPA).
The FEPA prohibits employers with four or more employees from using race, color, religion, sex, sexual orientation, disability, age and other protected factors during the screening process.
As a result of FEPA, employers generally are not permitted to request that applicants sign a consent form giving the employer unrestricted access to medical, school, employment or arrest records.
A blanket consent provides the employer access to records that would include information about the applicant's age, arrest record, physical or mental disabilities and other information that an employer is not permitted to rely on in making hiring decisions in Rhode Island.
Arrest and Conviction Records
Rhode Island employers with four or more employees may not inquire about a job applicant's arrest record either orally or in writing unless the applicant is applying for a law enforcement position. See +R.I. Gen. Laws § 28-5-7(7).
Employers are permitted to inquire about an applicant's conviction records. See +RI Gen. Laws § 28-5-7(7).
If a job applicant has had a conviction expunged, however, the applicant is permitted to respond on an application that he or she has not been convicted of a crime.
Rhode Island has carved out an exception to this law for law enforcement and teachers, as well as operators and employees of early childhood education facilities.
Job applicants and individuals in these positions are required to disclose the fact of a conviction regardless of whether the conviction has been expunged.
In addition, the custodian of records is required to disclose the existence of the expunged records for law enforcement applicants, teachers and early childhood facility applicants to potential employers. See +R.I. Gen. Laws § 12-1.3-4.
Mandatory Background Checks
Rhode Island recently passed a new background check law that makes it mandatory to perform a criminal background check on adult volunteers who participate in youth mentoring.
Rhode Island also requires background checks for all adults who work in:
- Health care;
- Public and private schools; and
- Private security guards.
Disqualifying offenses are murder, voluntary or involuntary manslaughter, sexual assault, assault on those age 60 or older, assault with intent to commit a felony, felony assault, abuse, neglect or mistreatment of patients, burglary, arson, robbery and felony drug offenses, larceny or felony banking violations.
Rhode Island has not adopted a law regarding credit check requirements that goes beyond the federal Fair Credit Reporting Act and Consumer Credit Reform Act of 1996.
Under these federal laws, employers may not obtain a credit report, unless a clear written disclosure is made to the applicant prior to the report.
The employer also must obtain written authorization from the applicant or employee to conduct the credit check.
Disclosure must be made in a separate written document and include only the disclosure.
If the employer elects not to hire the candidate as a result in whole or in part based on of the findings of the credit report, the employer must advise the candidate of the results, and provide the name and address of the credit bureau making the report. See +R.I. Gen. Laws § 6-13.1-21(b).
Rhode Island recognizes a cause of action for negligent hiring. See Welsh Manufacturing v. Pinkerton's, Inc., +474 A.2d 436 (R.I.1984).
If an employer hires an employee who is unfit and incompetent to perform the job, and an injury to another occurs as a result of the employer's unfit or incompetent performance, the employer may be liable for negligent hiring.
Rhode Island employers should require job applicants to sign an authorization permitting the employer to contact former employers and references identified on the employment application.
Employers should then contact each reference and document the response for the employer's file.
Doing so will help to establish that the employer took reasonable care to look into the background of the new employee prior to making the hiring decision and had no reason to believe, based on the reports of the references, that the employee would exhibit any dangerous behavior.
Rhode Island prohibits preemployment medical tests or inquiries that require an applicant to disclose information about an applicant's mental or physical disabilities.
Specifically, the ADA bans all preemployment examinations and questions related to medical conditions and disabilities until a conditional offer of employment is made.
After an employment offer has been extended, the employer may require an applicant to undergo a medical examination.
Employers should keep in mind that all applicants for a particular job must undergo the same post-offer medical exam for the practice not to be discriminatory.
While employers may condition the final offer of employment on the results of the medical test, the offer can only be withdrawn if the results indicate that the applicant is no longer able to perform the essential functions of the job even if he or she were given a reasonable accommodation.
Rhode Island has strict laws regulating the use of drug testing by employers. The state law applies to both urine testing and blood or other bodily fluid tests or tissue for evidence of drug use. In addition, it covers all employers regardless of size.
With the exception of a small number of federally-regulated occupations, all random drug testing of employees is banned in Rhode Island. See +R.I. Gen. Laws § 28-6.5-1.
However, a Rhode Island employer may require a job applicant to submit to testing of his or her blood, urine or any other bodily fluid or tissue if the employer:
- Has made a conditional job offer;
- Allows the applicant to provide the test sample in private; and
- Confirms positive test results with a federal certified lab. +R.I. Gen. Laws § 28-6.5-2(a).
This authorized testing of applicants does not extend to job applicants for positions with the state or its municipalities with the exception of the following occupations:
- Law enforcement officers;
- Correctional officers;
- Firefighters; and
- Occupations where testing is required by federal law or required for the continued receipt of federal funds. +R.I. Gen. Laws § 28-6.5-2(b).
Rhode Island permits medical marijuana use for patients with debilitating medical conditions and a valid registry identification card.
While there is no duty for an employer to accommodate or permit medical marijuana use in the workplace, the state's Hawkins-Slater Medical Marijuana Act does include an antidiscrimination provision which states, "No school, employer or landlord may refuse to enroll, employ, or lease to, or otherwise penalize a person solely for his or her status as a cardholder."
In 2017, a Rhode Island state court interpreted this provision to find that an employer acted illegally when it rejected a job applicant after she self-disclosed that she would fail a pre-employment drug test because of her status as a medical marijuana cardholder in Callaghan v. Darlington Fabrics Corp.
Lie Detector Tests
Employers are not permitted to require a job applicant to submit to a lie detector test as a condition of employment. In Rhode Island, it is unlawful for an employer to request that an applicant take a lie detector test. See +R.I. Gen. Laws. § 28-6.1-1.
Rhode Island law prohibits all employers from requiring or requesting that job applicants or employees submit to genetic testing as a condition of employment.
Employers are further prohibited from altering the conditions of employment of any person as a result of a genetic test. See R.I. Gen. Laws § Sect. 28-6.7-1(1)
Employers that test job candidates for HIV infection are forewarned that Rhode Island law expressly bans discrimination based on any actual or perceived positive HIV or AIDS test results. This prohibition applies to both public and private employers. See +R.I. Gen. Laws § 23-6.3-11.
There are other limitations as well, including:
- An HIV test cannot be performed by the healthcare provider without the informed written consent of the patient to be tested. See +R.I. Gen. Laws § 23-6.3-3(h)
- It is unlawful to disclose test results to a third party without the prior written consent of that individual. See +R.I. Gen. Laws § 23-6.3-7
- An HIV test may not be required as a condition of employment.
In addition, an employer conducting these tests must ensure that the test results are kept confidential.
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