Holistic Employee Governance for FFLs

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In this issue:
– Article: Holistic Employee Governance for FFLs

– Article: Facebook and Instagram step in with age limits on firearms ads, new rules for sellers

– Download: Three best-practice whitepapers

– Advisories: Our Most Recent Advisories

Holistic Employee Governance for FFLs

The national conversation is starting to focus on the federal mental health-disqualifying event for FFLs, which naturally connects with the topic of the background of potential hires and events that can occur during employment.  But, how can one understand the topic relative to firearms disqualifications and events that can conspire during the course of employment?

Let’s begin with some straight talk on the federal disqualifying event and what it means as per both federal law and federal regulations.  The language in the federal statue simply says that no person “who has been adjudicated as a mental defective or who has been committed to a mental institution” may ship, transport, possess, or receive a firearm or ammunition, which has been shipped or transported in interstate or foreign commerce.  (Refer to 18 U.S.C. §922(g)(4))

As with many provisions of the Gun Control Act of 1968, there are associated federal regulations that elaborate on the topic.  In this case, provisions at 27 CFR Part 478 include additional information on things like the definitions of  “mental institution” and “committed to a mental institution,” to provide the requirement that such occur through a formal process that protects the due process rights of the individual.

It’s also worth noting that there are currently proposed federal rules which would amend HIPAA and otherwise clarify prior regulations to facilitate the input of limited, individual information.  These amendments would apply to only those HIPAA covered entities that conduct involuntary commitment proceedings or that are state repositories for such adjudication records to input into the NICS database.  The field information would include name, date of birth, gender, reporting entity and code identifying the agency record supporting the prohibition.

Federal denials under the mental health-disqualifying event had been at approximately 1% of total denials, potentially this low because of the paucity of both federal and state records.  In 2007, Congress passed the NICS Improvement Amendments Act (NIAA) and, from 2007 to 2013, more than $60 million in grants were awarded to encourage states to improve records access for federal background checks.  The statute also changed the mental health disqualifier to allow a person to petition for eligibility when relief is granted under a federal or state relief from disabilities program that meets certain conditions.

Even so, a 2010 study noted that 23 states and the District of Columbia had submitted fewer than 100 mental health records to the federal database, 17 states had submitted fewer than 10 mental health records, and four states had not submitted any such records.  On the federal side, 52 out of 61 agencies had not submitted any mental health records.

As of January 31, 2014, the tally of mental health records in the “Active Records in the NICS Index” has reached more than 3.3 million records, or, approximately 30% of total records.  This category is now the second most populated records filed in the NICS Index.

Let’s take a moment and connect this to the realm of your FFL.  Do you run background checks on prospective employees prior to hire and at any points during the term of employment?  What do you do if an employee seeks to purchase a firearm from inventory but fails a NICS check?  And how do you handle the juxtaposition between an employee seeking leave for a mental health disability vis-à-vis his or her job responsibilities?

First, there is nothing unusual about seeking a background check on a job applicant, as long as it is in compliance with federal and state laws, particularly concerning drug testing.  A standard background check may not turn up any information on a person’s mental health history, however, unless he has been adjudicated for inpatient commitment or otherwise legally appointed a guardian for the management of affairs. 

The more pertinent question may be one for you and for the person who conducts interviews of possible hires and that is just how much do you know and understand about mental illness?  As with medical health issues, mental health problems have various signs and symptoms.  Awareness both of your rights to request a background check and to identify mental health problems are important parts of the hiring process.

Second, write up a Standard Operating Procedure on how management should respond to concerns about a fellow employee’s mental health, and provide training to assist with effective intervention. It is recommended that this be performed under the advisement of an employment attorney.  The mental health-disqualifying event is not the only one on the federal list that can occur in the workplace.  You should also consider situations involving orders of protection, employees charged with a crime and pending trial, and employees convicted of a crime with a term of incarceration exceeding one year.  When co-workers understand in-house resources, it not only enhances awareness, it allows them to be an effective team member in connecting an employee with resources.

Third, be aware of HIPAA requirements around medial and mental health issues, especially if you offer employer-sponsored medical insurance, flexible medical spending accounts, leave under the Family Medical Leave Act, and paid or unpaid leave.  There are more ways than a NICS background check that an employer may come into possession of sensitive medical and mental health information, and there is no substitute for planning ahead on handling such a situation.

As the mental health topic gains national media share relative to gun ownership and use, now is an appropriate time to become even more familiar with the topic and to consider the topic relative to your own business.  What’s the old saying?  An ounce of prevention is worth a pound of cure.

Orchid Advisors provides electronic newsletter (“Advisory and Alert”) and blogs for general informational purposes only. It should not be considered a formal or informal interpretation of law. It is not intended as professional counsel, should not be considered legal advice and should not be used as such.