On May 12, 2015, Governor Larry Hogan signed a bill that is aimed at restricting the access that convicted sex offenders will have in childcare facilities and in public and private schools throughout the State of Maryland. Senate Bill 508, which was introduced by a bipartisan group of Maryland State Senators (Hough, Cassilly, King, Lee, Ramirez, Raskin, Waugh, and Ready), amends Education Article Sections 2-206.1 and 6-113 and Family Law Article Section 5-561 to prohibit employees of contractors and subcontractors from gaining access to children at such institutions. The new provisions are to take effect on July 1, 2015.
The revisions to the law require future contracts to contain a provision “that a contractor or subcontractor for the school may not knowingly assign an employee to work on school premises with direct, unsupervised, and uncontrolled access to children, if the employee has been convicted of a crime identified” in Section 2-206.1(a) of the Education Article (for private schools) or 6-113(a) of the Education Article (for public schools). The crimes identified in the statutes include: a third or fourth degree sex offense under Maryland law or under the laws of another state that would be considered a third or fourth degree sex offense if committed in Maryland, child sex abuse, or a crime of violence (such as murder, rape, first degree arson, robbery, kidnapping, and several others).
At first glance, the newly enacted provisions in Sections 2-206.1 and 6-113 of the Education Article may appear to have little impact on contractors and subcontractors because the standard used in those provisions is that a contractor or subcontractor may not “knowingly” assign an employee at a school project. In other words, the “knowingly” language invites the question, what if a contractor or subcontractor assigns an employee to work at a school but has no knowledge of that employee’s prior criminal history? The new law handles the “knowingly” component through a different statute. Specifically, the legislation also amended Section 5-561 of the Family Law Article to include the following provision: “A contractor or subcontractor shall require an employee that will have direct, unsupervised, and uncontrolled access to children in a facility listed in [the statute] to obtain a criminal history records check.” The types of facilities that trigger the requirement for contractors and subcontractors to ascertain criminal history information from its employees include, but are not limited to: child care centers, public schools, private or nonpublic schools, foster care homes or facilities, recreation centers, and day camps.
Therefore, contractors and subcontractors that perform construction work on any of these types of facilities are under an affirmative obligation to have criminal background checks performed on their employees who will be assigned to work on the project if the employees will have direct, unsupervised and uncontrolled access to children during the course of the work. While the new provision does not define the term “direct, unsupervised and uncontrolled access to children”, if there is a risk that the employee may have access to children in the identified facilities, the best course for the contractor and subcontractor is to confirm that the background check is conducted to ensure that the company is in compliance with Section 5-561 of the Family Law Article.