45 Cfr 2540.200-207

45 CFR Part 2540 Subpart B (up to date as of 6/13/2022)
Requirements Directly Affecting the Selection and Treatment o...

45 CFR Part 2540 Subpart B

This content is from the eCFR and is authoritative but unofficial.

Title 45 - Public Welfare
Subtitle B - Regulations Relating to Public Welfare
Chapter XXV - Corporation for National and Community Service
Part 2540 - General Administrative Provisions
Authority: E.O. 13331, 69 FR 9911; 18 U.S.C. 506, 701, 1017; 42 U.S.C. 12653, 12631-12637, 12645g; 42 U.S.C. 5065.
Source: 59 FR 13808, Mar. 23, 1994, unless otherwise noted.

Subpart B Requirements Directly Affecting the Selection and Treatment of
Participants
§ 2540.200 Which entities are required to comply with the National Service Criminal History
Check requirements in this subpart?
§ 2540.201 Which individuals require a National Service Criminal History Check?
§ 2540.202 What eligibility criteria apply to an individual for whom a National Service Criminal
History Check is required?
§ 2540.203 May a grant recipient or subrecipient or service site establish and apply suitability
criteria for individuals to work or serve in a position specified in this subpart?
§ 2540.204 What are the components of a National Service Criminal History Check?
§ 2540.205 By when must the National Service Criminal History Check be completed?
§ 2540.206 What procedural steps are required, in addition to conducting the National Service
Criminal History Check described in this subpart?
§ 2540.207 Waiver.
§ 2540.208 Under what circumstances may participants be engaged?
§ 2540.210 What provisions exist to ensure that Corporation-supported programs do not
discriminate in the selection of participants and staff?
§ 2540.215 What should a program participant, staff members, or beneficiary do if the individual
believes he or she has been subject to illegal discrimination?
§ 2540.220 Under what circumstances and subject to what conditions are participants in
Corporation-assisted programs eligible for family and medical leave?
§ 2540.230 What grievance procedures must recipients of Corporation assistance establish?
Subpart B - Requirements Directly Affecting the Selection and Treatment of Participants
§ 2540.200 Which entities are required to comply with the National Service Criminal History
Check requirements in this subpart?
The National Service Criminal History Check is a requirement for entities that are recipients or subrecipients of the
following grants:
(a) Operational grants provided by AmeriCorps State and National;
45 CFR 2540.200(a) (enhanced display)

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45 CFR Part 2540 Subpart B (up to date as of 6/13/2022)
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45 CFR 2540.200(b)

(b) Foster Grandparent Program Grants;
(c) Retired and Senior Volunteer Program Grants;
(d) Senior Companion Program Grants;
(e) Senior Demonstration Program Grants that receive funding from CNCS;
(f)

Martin Luther King, Jr. Day of Service Grants;

(g) September 11th Day of Service Grants;
(h) Social Innovation Fund Grants;
(i)

Volunteer Generation Fund Grants;

(j)

AmeriCorps VISTA Program Grants;

(k) AmeriCorps VISTA Support Grants.
[86 FR 11146, Feb. 24, 2021]

§ 2540.201 Which individuals require a National Service Criminal History Check?
(a) A National Service Criminal History Check must be conducted for individuals in covered positions.
Individuals in covered positions are individuals selected, under a CNCS grant specified in 2540.200, by the
recipient, subrecipient, or service site to work or serve in a position under a CNCS grant specified in §
2540.200:
(1) As an AmeriCorps State and National member, as described in 42 U.S.C. 12511(30)(A)(i);
(2) As a Foster Grandparent who receives a stipend;
(3) As a Senior Companion who receives a stipend; or
(4) In a position in which they will receive a salary, directly or reflected as match, under a cost
reimbursement grant.
(b) A National Service Criminal History Check is not required for those individuals listed in paragraph (a) of
this section who are under the age of 18 on the first day of work or service in a covered position.
(c) A National Service Criminal History Check is not required for individuals whose activity is entirely included
in the grant recipient's indirect cost rate.
[86 FR 11147, Feb. 24, 2021]

§ 2540.202 What eligibility criteria apply to an individual for whom a National Service Criminal
History Check is required?
An individual shall be ineligible to work or serve in a position specified in § 2540.201(a) if the individual (a) Refuses to consent to a criminal history check described in § 2540.204;
(b) Makes a false statement in connection with a criminal history check described in § 2540.204;
(c) Is registered, or is required to be registered, on a state sex offender registry or the National Sex Offender
Registry; or
45 CFR 2540.202(c) (enhanced display)

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45 CFR 2540.202(d)

(d) Has been convicted of murder, as defined in 18 U.S.C. 1111.
[86 FR 11147, Feb. 24, 2021]

§ 2540.203 May a grant recipient or subrecipient or service site establish and apply suitability
criteria for individuals to work or serve in a position specified in this subpart?
Grant recipients and subrecipients, or service sites, may establish suitability criteria, consistent with state and
Federal Civil Rights and nondiscrimination laws, for individuals working or serving in a position specified in §
2540.201(a). While members may be eligible to work or serve in a position specified in § 2540.201(a) based on the
eligibility requirements of § 2540.202, a grant recipient, subrecipient, or service site may determine that an
individual is not suitable to work or serve in such a position based on criteria that the grant recipient or subrecipient
or service site establishes.
[86 FR 11147, Feb. 24, 2021]

§ 2540.204 What are the components of a National Service Criminal History Check?
(a) Unless CNCS approves a waiver under § 2540.207, for each individual in a position specified in §
2540.201, grantees or subgrantees must, obtain:
(1) A nationwide check of the National Sex Offender Public website through NSOPW.gov;
(2) A check of the State criminal history record repository or agency-designated alternative for the
individual's State of residence and State of service; and
(3) A fingerprint-based check of the FBI criminal history record database through the State criminal
history record repository or agency-approved vendor.
(b) One way for grant recipients or subrecipients to obtain and document the required components of the
National Service History Check is through the use of agency-approved vendors.
[86 FR 11147, Feb. 24, 2021]

§ 2540.205 By when must the National Service Criminal History Check be completed?
(a) The National Service Criminal History Check must be conducted, reviewed, and an eligibility determination
made by the grant recipient or subrecipient based on the results of the National Service Criminal History
Check before a person begins to work or serve in a position specified in § 2540.201(a).
(b) If a person serves consecutive terms of service or employment with the same organization in a position
specified in § 2540.201(a) and does not have a break in service or employment longer than 180 days, then
no additional National Service Criminal History Check is required, as long as the original check complied
with the requirements of § 2540.204. If a National Service Criminal History Check was not conducted on a
person because they were under the age of 18 at the time they began their prior term(s) of service or
employment in a covered position, pursuant to § 2540.201(b), a National Service Criminal History check
must be conducted prior to the individual beginning a subsequent term of work or service for which the
person is 18 years of age or older at the start of work or service.
(c) Persons working or serving in positions specified in § 2540.201(a) prior to May 1, 2021, who continue
working or serving in a position specified in § 2540.201(a) on or after November 1, 2021, must have a
National Service Criminal History Check conducted, reviewed, and an eligibility determination made by the
45 CFR 2540.205(c) (enhanced display)

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45 CFR 2540.206

grant recipient or subrecipient based on the results of the National Service Criminal History Check
completed in accordance with this part. For these people, the National Service Criminal History Check
must be completed no later than November 1, 2021.
[86 FR 11147, Feb. 24, 2021]

§ 2540.206 What procedural steps are required, in addition to conducting the National Service
Criminal History Check described in this subpart?
(a) In addition to conducting the National Service Criminal History Check described in § 2540.204, grant
recipients or subrecipients must:
(1) Obtain a person's consent before conducting the state and FBI components of the National Service
Criminal History Check;
(2) Provide notice that selection for work or service for a position specified in § 2540.201(a) is
contingent upon the organization's review of the National Service Criminal History Check component
results;
(3) Provide a reasonable opportunity for the person to review and challenge the factual accuracy of a
result before action is taken to exclude the person from the position;
(4) Take reasonable steps to protect the confidentiality of any information relating to the criminal history
check, consistent with authorization provided by the applicant;
(5) Maintain documentation of the National Service Criminal History Check as grant records; and
(6) Pay for the cost of the NSCHC. Unless specifically approved by CNCS under § 2540.207, the person
who is serving or working in the covered position may not be charged for the cost of any component
of a National Service Criminal History Check.
(b) CNCS-approved vendors may facilitate obtaining and documenting the requirements in paragraphs (a)(1)
through (5) of this section.
[86 FR 11147, Feb. 24, 2021]

§ 2540.207 Waiver.
CNCS may waive provisions of §§ 2540.200 through.2540.206 for good cause, or for any other lawful basis. To
request a waiver, submit a written request to NSCHC Waiver Requests, 250 E Street SW, Washington DC 20525, or
send your request to [email protected].
[86 FR 11148, Feb. 24, 2021]

§ 2540.208 Under what circumstances may participants be engaged?
A State may not engage a participant to serve in any program that receives Corporation assistance unless and until
amounts have been appropriated under section 501 of the Act (42 U.S.C. 12681) for the provision of AmeriCorps
educational awards and for the payment of other necessary expenses and costs associated with such participant.
[59 FR 13808, Mar. 23, 1994. Redesignated at 72 FR 48582, Aug. 24, 2007]

45 CFR 2540.208 (enhanced display)

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45 CFR Part 2540 Subpart B (up to date as of 6/13/2022)
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45 CFR 2540.210

§ 2540.210 What provisions exist to ensure that Corporation-supported programs do not
discriminate in the selection of participants and staff?
(a) An individual with responsibility for the operation of a project that receives Corporation assistance must
not discriminate against a participant in, or member of the staff of, such project on the basis of race,
color, national origin, sex, age, or political affiliation of such participant or member, or on the basis of
disability, if the participant or member is a qualified individual with a disability.
(b) Any Corporation assistance constitutes Federal financial assistance for purposes of title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C.
1681 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and the Age Discrimination
Act of 1975 (42 U.S.C. 6101 et seq.), and constitutes Federal financial assistance to an education
program or activity for purposes of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).
(c) An individual with responsibility for the operation of a project that receives Corporation assistance may
not discriminate on the basis of religion against a participant in such project or a member of the staff of
such project who is paid with Corporation funds. This provision does not apply to the employment (with
Corporation assistance) of any staff member of a Corporation-supported project who was employed with
the organization operating the project on the date the Corporation grant was awarded.
(d) Grantees must notify all program participants, staff, applicants, and beneficiaries of:
(1) Their rights under applicable federal nondiscrimination laws, including relevant provisions of the
national service legislation and implementing regulations; and
(2) The procedure for filing a discrimination complaint with the Corporation's Office of Civil Rights and
Inclusiveness.
[59 FR 13808, Mar. 23, 1994, as amended at 73 FR 53760, Sept. 17, 2008]

§ 2540.215 What should a program participant, staff members, or beneficiary do if the
individual believes he or she has been subject to illegal discrimination?
A program participant, staff member, or beneficiary who believes that he or she has been subject to illegal
discrimination should contact the Corporation's Office of Civil Rights and Inclusiveness, which offers an impartial
discrimination complaint resolution process. Participation in a discrimination complaint resolution process is
protected activity; a grantee is prohibited from retaliating against an individual for making a complaint or
participating in any manner in an investigation, proceeding, or hearing.
[73 FR 53760, Sept. 17, 2008]

§ 2540.220 Under what circumstances and subject to what conditions are participants in
Corporation-assisted programs eligible for family and medical leave?
(a) Participants in State, local, or private nonprofits programs. A participant in a State, local, or private
nonprofit program receiving support from the Corporation is considered an eligible employee of the
program's project sponsor under the Family and Medical Leave Act of 1993 (29 CFR part 825) if (1) The participant has served for at least 12 months and 1,250 hours during the year preceding the
start of the leave; and

45 CFR 2540.220(a)(1) (enhanced display)

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45 CFR 2540.220(a)(2)

(2) The program's project sponsors engages in commerce or any industry or activity affecting
commerce, and employs at least 50 employees for each working day during 20 or more calendar
workweeks in the current or preceding calendar year.
(b) Participants in Federal programs. Participants in Federal programs operated by the Corporation or by
another Federal agency will be considered Federal employees for the purposes of the Family and Medical
Leave Act if the participants have completed 12 months of service and the project sponsor is an
employing agency as defined in 5 U.S.C 6381 et seq.; such participants therefore will be eligible for the
same family and medical leave benefits afforded to such Federal employees.
(c) General terms and conditions. Participants that qualify as eligible employees under paragraphs (a) or (b)
of this section are entitled to take up to 12 weeks of unpaid leave during a 12 month period for any of the
following reasons (in the cases of both paragraphs (c)(1) and (2) of this section the entitlement to leave
expires 12 months after the birth or placement of such child):
(1) The birth of a child to a participant;
(2) The placement of a child with a participant for adoption or foster care;
(3) The serious illness of a participant's spouse, child or parent; or
(4) A participant's serious health condition that makes that participant unable to perform his or her
essential service duties (a serious health condition is an illness or condition that requires either
inpatient care or continuing treatment by a health care provider).
(d) Intermittent leave or reduced service. The program, serving as the project sponsor, may allow a participant
to take intermittent leave or reduce his or her service hours due to the birth of or placement of a child for
adoption or foster care. The participant may also take leave to care for a seriously ill immediate family
member or may take leave due to his or her own serious illness whenever it is medically necessary.
(e) Alternate placement. If a participant requests intermittent leave or a reduced service hours due to a
serious illness or a family member's sickness, and the need for leave is foreseeable based on planned
medical treatment, the program, or project sponsor may temporarily transfer the participant to an
alternative service position if the participant:
(1) Is qualified for the position; and
(2) Receives the same benefits such as stipend or living allowance and the position better
accommodates the participants recurring periods of leave.
(f)

Certification of cause. A program, or project sponsor may require that the participant support a leave
request with a certification from the health care provider of the participant or the participant's family
member. If a program sponsor requests a certification, the participant must provide it in a timely manner.

(g) Continuance of coverage.
(1) If a State, local or private program provides for health insurance for the full-time participant, the
sponsor must continue to provide comparable health coverage at the same level and conditions that
coverage would have been provided for the duration of the participant's leave.
(2) If the Federal program provides health insurance coverage for the full-time participant, the sponsor
must also continue to provide the same health care coverage for the duration of the participant's
leave.

45 CFR 2540.220(g)(2) (enhanced display)

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45 CFR 2540.220(h)

(h) Failure to return. If the participant fails to return to the program at the end of leave for any reason other
than continuation, recurrence or onset of a serious health condition or other circumstances beyond his or
her control, the program may recover the premium that he or she paid during any period of unpaid leave.
(i)

Applicability to term of service. Any absence, due to family and medical leave, will not be counted towards
the participant's term of service.

§ 2540.230 What grievance procedures must recipients of Corporation assistance establish?
State and local applicants that receive assistance from the Corporation must establish and maintain a procedure
for the filing and adjudication of grievances from participants, labor organizations, and other interested individuals
concerning programs that receive assistance from the Corporation. A grievance procedure may include dispute
resolution programs such as mediation, facilitation, assisted negotiation and neutral evaluation. If the grievance
alleges fraud or criminal activity, it must immediately be brought to the attention of the Corporation's inspector
general.
(a) Alternative dispute resolution.
(1) The aggrieved party may seek resolution through alternative means of dispute resolution such as
mediation or facilitation. Dispute resolution proceedings must be initiated within 45 calendar days
from the date of the alleged occurrence. At the initial session of the dispute resolution proceedings,
the party must be advised in writing of his or her right to file a grievance and right to arbitration. If the
matter is resolved, and a written agreement is reached, the party will agree to forego filing a
grievance in the matter under consideration.
(2) If mediation, facilitation, or other dispute resolution processes are selected, the process must be
aided by a neutral party who, with respect to an issue in controversy, functions specifically to aid the
parties in resolving the matter through a mutually achieved and acceptable written agreement. The
neutral party may not compel a resolution. Proceedings before the neutral party must be informal,
and the rules of evidence will not apply. With the exception of a written and agreed upon dispute
resolution agreement, the proceeding must be confidential.
(b) Grievance procedure for unresolved complaints. If the matter is not resolved within 30 calendar days from
the date the informal dispute resolution process began, the neutral party must again inform the aggrieving
party of his or her right to file a formal grievance. In the event an aggrieving party files a grievance, the
neutral may not participate in the formal complaint process. In addition, no communication or
proceedings of the informal dispute resolution process may be referred to or introduced into evidence at
the grievance and arbitration hearing. Any decision by the neutral party is advisory and is not binding
unless both parties agree.
(c) Time limitations. Except for a grievance that alleges fraud or criminal activity, a grievance must be made
no later than one year after the date of the alleged occurrence. If a hearing is held on a grievance, it must
be conducted no later than 30 calendar days after the filing of such grievance. A decision on any such
grievance must be made no later than 60 calendar days after the filing of the grievance.
(d) Arbitration (1) Arbitrator (i)

Joint selection by parties. If there is an adverse decision against the party who filed the
grievance, or 60 calendar days after the filing of a grievance no decision has been reached, the
filing party may submit the grievance to binding arbitration before a qualified arbitrator who is
jointly selected and independent of the interested parties.

45 CFR 2540.230(d)(1)(i) (enhanced display)

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45 CFR 2540.230(d)(1)(ii)

(ii) Appointment by Corporation. If the parties cannot agree on an arbitrator within 15 calendar
days after receiving a request from one of the grievance parties, the Corporations Chief
Executive Officer will appoint an arbitrator from a list of qualified arbitrators.
(2) Time Limits (i)

Proceedings. An arbitration proceeding must be held no later than 45 calendar days after the
request for arbitration, or, if the arbitrator is appointed by the Chief Executive Officer, the
proceeding must occur no later than 30 calendar days after the arbitrator's appointment.

(ii) Decision. A decision must be made by the arbitrator no later than 30 calendar days after the
date the arbitration proceeding begins.
(3) The cost. The cost of the arbitration proceeding must be divided evenly between the parties to the
arbitration. If, however, a participant, labor organization, or other interested individual prevails under
a binding arbitration proceeding, the State or local applicant that is a party to the grievance must pay
the total cost of the proceeding and the attorney's fees of the prevailing party.
(e) Suspension of placement. If a grievance is filed regarding a proposed placement of a participant in a
program that receives assistance under this chapter, such placement must not be made unless the
placement is consistent with the resolution of the grievance.
(f)

Remedies. Remedies for a grievance filed under a procedure established by a recipient of Corporation
assistance may include (1) Prohibition of a placement of a participant; and
(2) In grievance cases where there is a violation of nonduplication or nondisplacement requirements
and the employer of the displaced employee is the recipient of Corporation assistance (i)

Reinstatement of the employee to the position he or she held prior to the displacement;

(ii) Payment of lost wages and benefits;
(iii) Re-establishment of other relevant terms, conditions and privileges of employment; and
(iv) Any other equitable relief that is necessary to correct any violation of the nonduplication or
nondisplacement requirements or to make the displaced employee whole.
(g) Suspension or termination of assistance. The Corporation may suspend or terminate payments for
assistance under this chapter.
(h) Effect of noncompliance with arbitration. A suit to enforce arbitration awards may be brought in any
Federal district court having jurisdiction over the parties without regard to the amount in controversy or
the parties' citizenship.

45 CFR 2540.230(h) (enhanced display)

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