21-15-104. Waiver of exclusion or discharge requirement for persons in designated positions.

21-15-104. Waiver of exclusion or discharge requirement for persons in designated positions. (a)(1) The provisions of § 21-15-102(a)(4) and §§ 21-15-102(f), 21-15-103(e), 21-15-103(g), and 21-15-110(b) may be waived by the director of a state agency upon the request of: (A) A supervisor or other managerial employee in the state agency; (B) An affected applicant; or (C) An incumbent employee in a designated position who is subject to discharge. (2) A request for a waiver must be made within five (5) days of receipt of the criminal background check or central registry check. (3) If the crime is a misdemeanor and more than five (5) years have elapsed since the conviction, the state agency is not required to discharge an incumbent employee if a request for a waiver is timely made and if the waiver is ultimately granted. (4) If the waiver is not granted and the request was for an incumbent employee who was not immediately discharged, the state agency shall immediately discharge the incumbent employee. (5) If the waiver is not granted and the request was for an applicant, the state agency is prohibited from hiring the applicant. (6) If an incumbent employee was immediately discharged but was subsequently granted a waiver, the incumbent employee shall be immediately reinstated but is not entitled to retroactive relief, including back pay. (b)(1) A waiver may be granted upon a preponderance of the evidence that the applicant or employee is rehabilitated such that the public interest is not threatened by the applicant's or employee's employment. (2) Evidence of rehabilitation may include: (A) The age at which the crime or act was committed; (B) The circumstances surrounding the crime or act; (C) The length of time since the crime or act; (D) Subsequent work history; (E) Employment references; (F) Character references; and (G) Other evidence demonstrating that the applicant or employee does not pose a threat to the health or safety of children or other clients of the state agency. (c) Because of the serious nature of the offenses and the close relationship to the type of work that is to be performed, the following offenses may not be waived by the director of a state agency: (1) Capital murder, § 5-10-101; (2) Murder in the first degree, § 5-10-102; (3) Murder in the second degree, § 5-10-103; (4) Kidnapping, § 5-11-102; (5) Rape, § 5-14-103; (6) Sexual assault in the first degree, § 5-14-124; (7) Sexual assault in the second degree, § 5-14-125; (8) Sexual indecency with a child, § 5-14-110; (9) Endangering the welfare of an incompetent person in the first degree, § 5-27-201; (10) Endangering the welfare of a minor in the first degree, § 5-27-205; (11) Engaging children in sexually explicit conduct for use in visual or print medium, § 5-27-303; (12) Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child, § 5-27-304; (13) Transportation of minors for prohibited sexual conduct, § 5-27-305; (14) Employing or consenting to the use of a child in a sexual performance, § 5-27-402; (15) Producing, directing, or promoting a sexual performance by a child, § 5-27-403; (16) Adult abuse that constitutes a felony, § 5-28-103; (17) Arson, § 5-38-301; (18) Computer child pornography, § 5-27-603; (19) Computer exploitation of a child in the first degree, § 5-27-605; (20) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; and (21) Sexual extortion, § 5-14-113.