YANML, but do our undergrads need clearances BEFORE doing their job?
January 31, 2018 8:33 AM Subscribe
I work in a research lab that studies infants and toddlers. The children are almost never in a room without their parents, and we almost never provide supervision or "regular and repeated" (?) contact with children. I have done my required background checks, and all of our new undergrads will do them too, but can we avoid any instances where they are "supervising" children while their checks are processing and be in the clear? We are in PA, USA. I'm basing all this off this document.
Additional information:
On rare occasions, parents may bring in older or younger children, so while the study is taking place in one room (the parent is with the baby/toddler participant), a student worker may need to supervise the child and be alone with them. We can definitely avoid situations like this with student workers whose background checks have not fully processed.
Otherwise, we are not responsible for their "safety" while they are in the lab (again, their parents will be there supervising them; all our studies involve them watching a video and listening to sounds, so no safety concerns there), which was stated to be the "paramount" consideration in all this.
Unfortunately, I'm not really clear on what "regular and repeated" contact with children means. I take it to mean that they have contact regularly with the same children, which is not necessarily the case for us. We may see one family up to two or three times a year, but that's the most.
To be clear: we will have them do the checks no matter what, but in the meantime, are they good? It will take 3-4 weeks for their background checks to go through, since the process changed significantly last November and we were not given notice in advance. Also, we typically do not know which student workers we will hire in advance, so in general waiting for these checks before they can be around kids is untenable. Thanks!
Additional information:
On rare occasions, parents may bring in older or younger children, so while the study is taking place in one room (the parent is with the baby/toddler participant), a student worker may need to supervise the child and be alone with them. We can definitely avoid situations like this with student workers whose background checks have not fully processed.
Otherwise, we are not responsible for their "safety" while they are in the lab (again, their parents will be there supervising them; all our studies involve them watching a video and listening to sounds, so no safety concerns there), which was stated to be the "paramount" consideration in all this.
Unfortunately, I'm not really clear on what "regular and repeated" contact with children means. I take it to mean that they have contact regularly with the same children, which is not necessarily the case for us. We may see one family up to two or three times a year, but that's the most.
To be clear: we will have them do the checks no matter what, but in the meantime, are they good? It will take 3-4 weeks for their background checks to go through, since the process changed significantly last November and we were not given notice in advance. Also, we typically do not know which student workers we will hire in advance, so in general waiting for these checks before they can be around kids is untenable. Thanks!
Response by poster: To clarify, we also do not do any of the following:
temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision or control.
We study typical populations and do not provide any kind of intervention or treatment.
When HR reached out to us about this originally, they basically asked us to make the decision about whether our lab workers qualified for this, and we opted to take the safe route and do the checks. I know some other labs in our developmental psychology group here has workers who don't complete the checks at all.
posted by ancient star at 8:39 AM on January 31, 2018
temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision or control.
We study typical populations and do not provide any kind of intervention or treatment.
When HR reached out to us about this originally, they basically asked us to make the decision about whether our lab workers qualified for this, and we opted to take the safe route and do the checks. I know some other labs in our developmental psychology group here has workers who don't complete the checks at all.
posted by ancient star at 8:39 AM on January 31, 2018
Agree w/Miko that this is a question that really only your lawyer can answer, but from my own experience--I work in a pediatric hospital and even student observers who would never be alone with children/have no input into their care have to have all those clearances done before they can be anywhere in the hospital with children.
posted by n. moon at 8:45 AM on January 31, 2018
posted by n. moon at 8:45 AM on January 31, 2018
I'm surprised you're asking us (non-experts on the internet), instead of the experts at your institution. You need to ask them. Look up your institution's legal counsel office ASAP.
There are also the requirements of your IRB, since you're doing research. I would be surprised if they approved something illegal, but it could happen if the students' role (and their backgrounds) weren't accurately described. In which case, the research is not really IRB approved and that is something to be very concerned about.
(Though, the fact that you're asking this here makes me wonder... are you not the PI? Have you raised this with the PI? Or are you concerned that the PI is not following the law?)
posted by Kutsuwamushi at 8:47 AM on January 31, 2018 [1 favorite]
There are also the requirements of your IRB, since you're doing research. I would be surprised if they approved something illegal, but it could happen if the students' role (and their backgrounds) weren't accurately described. In which case, the research is not really IRB approved and that is something to be very concerned about.
(Though, the fact that you're asking this here makes me wonder... are you not the PI? Have you raised this with the PI? Or are you concerned that the PI is not following the law?)
posted by Kutsuwamushi at 8:47 AM on January 31, 2018 [1 favorite]
Try asking the folks who made that document (contact info; this seems like a "general question" e-mail). They of all people are going to want to help you be in full compliance.
posted by teremala at 8:57 AM on January 31, 2018
posted by teremala at 8:57 AM on January 31, 2018
Response by poster: To clarify one last time (mostly because I feel like I'm just repeating myself now):
I'm in touch with HR about this and they've said it's up to us to determine whether our work and workers qualify for this (thus far, anyway). There are other research labs in our group that do very similar things who don't have all their workers doing this. I have done the background checks, and anyone else currently in contact with children in our lab has done them as well.
Our work is of course approved by the IRB. We are not doing anything illegal or currently breaking the law. That's extremely insulting, honestly.
I'm looking for help clarifying what some of this verbiage means. I'm not looking for blanket statements about what your (different) workplace does. I'm not looking for accusations about our "illegal activities". If you don't know the answer or don't feel like you can help, please don't comment.
posted by ancient star at 9:00 AM on January 31, 2018
I'm in touch with HR about this and they've said it's up to us to determine whether our work and workers qualify for this (thus far, anyway). There are other research labs in our group that do very similar things who don't have all their workers doing this. I have done the background checks, and anyone else currently in contact with children in our lab has done them as well.
Our work is of course approved by the IRB. We are not doing anything illegal or currently breaking the law. That's extremely insulting, honestly.
I'm looking for help clarifying what some of this verbiage means. I'm not looking for blanket statements about what your (different) workplace does. I'm not looking for accusations about our "illegal activities". If you don't know the answer or don't feel like you can help, please don't comment.
posted by ancient star at 9:00 AM on January 31, 2018
I understand what you're saying that you've contacted HR, but does that mean that legal counsel was also consulted via that?
To put it very crassly, one of the goals your institution has in doing appropriate checks is to make sure that you don't get sued, or had the right things in place if you do get sued. So your legal department should be very interested in this. Our legal department always has to give the ok on study executions (which includes staffing).
If contacting your HR means that your legal counsel got involved or HR are the people to decide to involve legal, then it seems like you yourself have CYA from the institution's standpoint, but the institution sounds like they still have some exposure.
Sorry if I am just another person suggesting to contact legal, but I would actually be asking my legal team to interpret what is "regular and repeated contact"for me; i would not take on the responsibility of defining or investigating it myself.
posted by Tandem Affinity at 9:15 AM on January 31, 2018 [6 favorites]
To put it very crassly, one of the goals your institution has in doing appropriate checks is to make sure that you don't get sued, or had the right things in place if you do get sued. So your legal department should be very interested in this. Our legal department always has to give the ok on study executions (which includes staffing).
If contacting your HR means that your legal counsel got involved or HR are the people to decide to involve legal, then it seems like you yourself have CYA from the institution's standpoint, but the institution sounds like they still have some exposure.
Sorry if I am just another person suggesting to contact legal, but I would actually be asking my legal team to interpret what is "regular and repeated contact"for me; i would not take on the responsibility of defining or investigating it myself.
posted by Tandem Affinity at 9:15 AM on January 31, 2018 [6 favorites]
From what you've said, you're having your undergrads go through the necessary background check process, and your concern is that because these checks take time, if you bring undergrads in as research assistants to have them twiddle their thumbs for a month before their checks clear, that's a waste of everyone's time, and it's rare to (for instance) hire undergrad-RAs who might be in the lab for a semester before the first couple weeks of term?
I've run in to analogues of this with facility access and clearances in other research environments, and the answer that I've always seen is that once the clearances / request for access is submitted, the undergrads are quietly allowed to work in the lab, provided they keep it quiet. That's not the letter of the law, but it's what I've seen
posted by Making You Bored For Science at 9:30 AM on January 31, 2018 [1 favorite]
I've run in to analogues of this with facility access and clearances in other research environments, and the answer that I've always seen is that once the clearances / request for access is submitted, the undergrads are quietly allowed to work in the lab, provided they keep it quiet. That's not the letter of the law, but it's what I've seen
posted by Making You Bored For Science at 9:30 AM on January 31, 2018 [1 favorite]
I am most certainly not your lawyer and I agree that your institution's lawyer needs to make the call. But if I were a layperson in this position, I would read the portion of the document you linked that is titled "What is the provisional hiring period for employees?"
posted by sheldman at 9:32 AM on January 31, 2018
posted by sheldman at 9:32 AM on January 31, 2018
Chiming in to say at my institution at least, HR is a separate entity from university counsel (legal), which is also a separate entity from the office that reviews/oversees IRB standards. I can't guarantee that any of these three entities talk to one another, and it's my understanding that as an investigator, I am responsible (and therefore also liable in case things go belly up) for conferring with all of them to ensure my research protocols adhere to best practices.
posted by pinkacademic at 9:35 AM on January 31, 2018 [1 favorite]
posted by pinkacademic at 9:35 AM on January 31, 2018 [1 favorite]
Best answer: I have been a research worker in an infant and child lab in PA. At the time, we did not interpret "regular and repeated" the way you're doing it here. We took "regular and repeated contact" with children to mean that contact with children was a regular part of this person's job duties. If you're not seeing the same children regularly, but you are seeing five different children a week in the lab, then you have regular and repeated contact with children. That interpretation came down from a senior level of our lab management, and I don't know if they consulted with HR and/or legal counsel. But the person above who noted that those are two different things is correct - consulting with HR does not mean you've consulted with legal counsel. Your institution almost certainly has separate legal counsel, who HR may or may not have consulted.
If I recall correctly, the process for people who had not yet gotten their clearance back in our lab was more or less what's described in the "provisional hiring period" section of the document you linked. If you're doing that, you're probably fine, but again, only your legal counsel can say for sure how your institution wants you to interpret that law. Sometimes an institution opts for more strict requirements than the minimum that the law sets out.
I would not necessarily take what other labs do as your guide. Some labs interpret regulations poorly; some are run by researchers who don't know and/or don't care what the regulations are. Some fit into weird loopholes in the regulations that you might not know about from the outside of the group. That said, it would be reasonable to have a process discussion with your PI about "hey, I noticed Dr. Z's group does this differently, do you know why? I was thinking we should review our process and make sure there's not a better way to do this."
posted by Stacey at 9:41 AM on January 31, 2018 [8 favorites]
If I recall correctly, the process for people who had not yet gotten their clearance back in our lab was more or less what's described in the "provisional hiring period" section of the document you linked. If you're doing that, you're probably fine, but again, only your legal counsel can say for sure how your institution wants you to interpret that law. Sometimes an institution opts for more strict requirements than the minimum that the law sets out.
I would not necessarily take what other labs do as your guide. Some labs interpret regulations poorly; some are run by researchers who don't know and/or don't care what the regulations are. Some fit into weird loopholes in the regulations that you might not know about from the outside of the group. That said, it would be reasonable to have a process discussion with your PI about "hey, I noticed Dr. Z's group does this differently, do you know why? I was thinking we should review our process and make sure there's not a better way to do this."
posted by Stacey at 9:41 AM on January 31, 2018 [8 favorites]
they've said it's up to us to determine whether our work and workers qualify for this (thus far, anyway)
I would be very uncomfortable with this answer as it migrates the liability from HR to you, and you are not a legal or an HR expert. I would ask them for a clearer policy on this supported by legal opinion. It is not appropriate for this decision to be left up to non-experts in the area of legality and liability. For your own protection, it would be reasonable of you to refuse to take this risk on behalf of the institution - if it is their policy, it will be their responsibility to defend you in case a decision has bad results. If it is your own decision, they could try to deny liability and shift it to you.
posted by Miko at 10:44 AM on January 31, 2018 [3 favorites]
I would be very uncomfortable with this answer as it migrates the liability from HR to you, and you are not a legal or an HR expert. I would ask them for a clearer policy on this supported by legal opinion. It is not appropriate for this decision to be left up to non-experts in the area of legality and liability. For your own protection, it would be reasonable of you to refuse to take this risk on behalf of the institution - if it is their policy, it will be their responsibility to defend you in case a decision has bad results. If it is your own decision, they could try to deny liability and shift it to you.
posted by Miko at 10:44 AM on January 31, 2018 [3 favorites]
Response by poster: Final update: I pushed our HR representative about this. He repeated, "If these research assistants never provide care, supervision, guidance or control of children, and there is always a parent or grad student present, they may not be needed. They would never be allowed to be alone with the child though, or this would be considered care or supervision."
But I pressed him to check with our general counsel and he will do so. It's unbelievable that I've had to push so hard for this.
posted by ancient star at 12:03 PM on January 31, 2018 [3 favorites]
But I pressed him to check with our general counsel and he will do so. It's unbelievable that I've had to push so hard for this.
posted by ancient star at 12:03 PM on January 31, 2018 [3 favorites]
Yeah, that's nuts, they should be more concerned. If it would help, you could specify that you cannot absolutely guarantee they would never be alone with a child - for instance, if the parent suddenly steps out for a call, runs to the bathroom, etc. A fire drill where they get separated somehow. Things happen. This is exactly why we are required to have the complete check.
posted by Miko at 1:56 PM on January 31, 2018
posted by Miko at 1:56 PM on January 31, 2018
Regarding the clearances, I live in PA and just had to re-do mine. You can now request the Child Abuse clearance online and I got my results within minutes. If you mail the form in it will take much longer. PA State Police clearance can also be done online and came back immediately. The longest was the FBI fingerprinting and that took a week. YMMV, of course.
In my place of employment we are allowed to start therapists without all the clearances as long as we have receipts for registration. We have to have the clearances within 30 days of hire or they get pulled.
posted by Nolechick11 at 10:21 AM on February 3, 2018
In my place of employment we are allowed to start therapists without all the clearances as long as we have receipts for registration. We have to have the clearances within 30 days of hire or they get pulled.
posted by Nolechick11 at 10:21 AM on February 3, 2018
This thread is closed to new comments.
I do similar things. This is a question for your legal counsel or legal matters officer and/or your insurance rep - someone that must be in contact with whomever runs the lab.
For my own work with minors, I know that we are not allowed to have anyone in-house/on the floor at all who does not have a completed background check on file. It's a liability risk.
posted by Miko at 8:35 AM on January 31, 2018 [7 favorites]