RAQs: Recently Asked Questions

Topic: Public restroom availability in reopening - 9/16/2020
A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were...
Posted: Wednesday, September 16, 2020 Permalink

MEMBER QUESTION

A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were not kept locked, and were cleaned once a day by our building's maintenance person.

Both restrooms are ADA-compliant and include a changing table. We have already installed motion sensors on the toilets and sink and replaced the hot air dryer with paper towels. Currently, our building is only open to staff and they wipe down touched surfaces with cleaner after use, and initial that they have done so on a bathroom cleaning log as required by our Safety Plan.

As we edge toward reopening to the public, we have many questions around these restrooms. Should we lock the restrooms and require the public to ask for a key? Should we lock the restrooms to the public entirely? Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day? Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

WNYLRC ATTORNEY'S RESPONSE

Like many of you, I have had to tackle a lot of previously unaddressed conundrums since March of 2020.  Especially when it involved developing a Safety Plan, this "tackling" has required research, patience, a good sense of humor, and lots of flexibility.[1]

The issue of how to handle 1) newfound concerns regarding the sanitary conditions of workplace toilets; and 2) newfound concerns about sanitary conditions of toilets in public spaces, is one of the most high-stakes and complex.  It can cause a lot of anxiety.

When a matter makes me anxious, I resort to either exercise, or exacting linguistic specificity.  Since you don't come to "Ask the Lawyer" for workout tips[2], I will address this anxiety-provoking issue with exacting linguistic specificity, starting with the Occupational Safety and Health Administration (OSHA)'s definitions of the different terminology used for bathrooms[3]:


Personal service room, means a room used for activities not directly connected with the production or service function performed by the establishment. Such activities include, but are not limited to, first-aid, medical services, dressing, showering, toilet use, washing, and eating.

Toilet facility, means a fixture maintained within a toilet room for the purpose of defecation or urination, or both.

Toilet room, means a room maintained within or on the premises of any place of employment, containing toilet facilities for use by employees.

Urinal means a toilet facility maintained within a toilet room for the sole purpose of urination.

Water closet means a toilet facility maintained within a toilet room for the purpose of both defecation and urination and which is flushed with water.
 

Now, before we go further: a few words about OSHA.  Based on size, location, type, and a dozen other factors, there is no one-size-fits-all for OSHA compliance. But public employers (like many libraries) in NY are required to follow OSHA's standards for employee toilets[4], and non-public employers, whose bathroom-supplying obligations will change by site and size of the organization, can refer to those standards for inspiration.[5] And OSHA (along with the Center for Disease Control, or "CDC") is currently a New York State Department of Health (NYSDOH) go-to for COVID-related sanitization information. 

So with those three resources in mind (NYSDOH, CDC, and OSHA), let's address the member's questions:

QUESTION 1: Should we lock the restrooms to the public entirely?

The first question to address in this is not "should" the library lock the restrooms to the public entirely, but can it?

Any library considered a place of "public assembly,"[6] by state regulation, must have a bathroom open to the public.[7]  However, the definition of a "place of public assembly" expressly excludes public association and free libraries, so yes, and while a municipal library will have a few more hoops to jump through, an association library can decide to limit access by the public.

If your library isn't required to have a "toilet facility" accessible by the public[8], and the capacity of your library means the toilet facility can't be routinely cleaned per the NYSDOH's recommendations, it is worth considering reducing or shutting access down.[9]

 

QUESTION 2: Should we lock the restrooms and require the public to ask for a key?

If this would help monitor use so the bathroom can be cleaned on an as-needed basis per NYSDOH/CDC/OSHA recommendations, yes, that is a viable option, and can be included as part of a Safety Plan. 

Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day?

OSHA states: "Employers operating workplaces during the COVID-19 pandemic should continue routine cleaning and other housekeeping practices in any facilities that remain open to workers or others. Employers who need to clean and disinfect environments potentially contaminated with SARS-CoV-2 should use EPA-registered disinfectants with label claims to be effective against SARS-CoV-2."

Meanwhile, the Phase II Safety Plan template from New York State requires any library to: "Conduct regular cleaning and disinfection at least after every shift, daily, or more frequently as needed, and frequent cleaning and disinfection of shared objects (e.g. tools, machinery) and surfaces, as well as high transit areas, such as restrooms and common areas, must be completed."

So, although there is no mathematically determined heightened standard, these requirements show that routine disinfection should be based on frequency of use, and at a bare minimum, bathrooms should be disinfected at least "once per shift," and there should be a log to register each cleaning (just as the member described they are already doing).

 

QUESTION 3: Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

This is a tricky question.  "Requiring" non-janitorial staff to do a task not in their job description risks concerns with morale, operational consistency, and if there is a contract involved, compliance (this will vary from library to library, of course).  And if the cleaning supplies trip a person's health conditions, there might also be concerns with ADA. 

Because of this, like all aspects of the Safety Plan, the requirement to sanitize surfaces in the bathroom(s) must be planned carefully. 

That should start with an analysis of the toilet facility, just as the member asking this question has done.  Does it have one toilet or many?  Does it have touchless sinks or sinks with handles?  Is the tile in good condition, or is the grout failing?  In short, what does it take to sanitize your library's unique space effectively?

One you've done the analysis, select the right products from the EPA's list of products known to effectively combat COVID-19, and based on the instructions on the product, select the method of disinfection that meets the needs of your operation, including the frequency.  And once you have established the method and the frequency, the requirements for employee PPE and training are here: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html and they include a link to a pdf poster about safe disinfection of the work site: https://www.epa.gov/sites/production/files/2020-04/documents/disinfectants-onepager.pdf.

 

And finally, the last part of the member's submission: Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

This is a great summarizing statement, because as it hints, and as this answer reviews, not all "public" restrooms are actually required to be open to the public at all.  Once you have confirmed the requirements for your particular library, it's time to assess what you can do—and what your mission demands that you do.  If that means reducing toilet facility access to minimum required levels, so employee energy and your library's budget can focus on service to the public, make it so.  If that means re-allocating part of the budget to hire a contractor specifically to clean the bathrooms every four hours since your library knows public access is either required or essential, and your library isn't situated to add that to employees' job descriptions, do that.  And if that means employees are expected to take on new duties to effect routine sanitization, develop a well-thought-out rollout plan[10] before implementing that as an express job duty.[11]

But whatever you do with the restrooms, the key is to consistently document that your library is following the NYDSOH, CDC, and OSHA guidelines suited to its unique site, location, and identity.

Thank you for a great question and a great example of the care libraries are taking to stay open and safe for the public.

 

 



[1] One of my co-workers rejected my first idea for managing our narrow hallway in the office.  "I will not announcement my presence by yelling "Gang Way!", Cole."  We settled on a protocol of visual inspection, first.   Even when your name is over the door, a Safety Plan is a matter of give and take.

[2] That said, if you suffer from carpel tunnel or sore forearms from too much typing, put your hands down flat (palm side up), stand on your fingers/palms, and pull upwards for 1minute 3xday.  Changed my life. 

[3] The OSHA-specific information is aggregated at this link: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#restrooms

[4]  This standard is enforced by the New York State Department of Labor Public Employees Safety and Health Bureau (NYSDOL PES) for public employees.

[5] Further information on required numbers of toilets can be found here, but for the sake of brevity, I am not going to go there: https://www.dos.ny.gov/DCEA/pdf/TB-2011-BCNYS%20-%20Minimum%20Required%20Toilet%20Facilities%20Based%20on%20Occupancy.pdf

[6] Per New York State Labor Law, §2, a “Place of public assembly” shall include (1) a theatre, (2) moving picture house, (3) assembly halls maintained or leased for pecuniary gain where one hundred or more persons may assemble for amusement or recreation, except (a) halls owned by churches, religious organizations, granges, and public association and free libraries as defined by section two hundred fifty-three of the education law, and (b) hotels having fifty or more rooms. [emphasis added, note the exclusionary language].

[7] 12 NYCRR 36-2.8

[8] Be careful in this analysis; if possible, confirm any conclusion that you don't have to have a public bathroom with your local attorney, or the municipal building inspector.

[9] Just be mindful that General Business Law Section 492 requires any place of business with an employee bathroom to let a visitor use that bathroom if it is a medical necessity.  While your library might not be a "place of business" under that law, people with medical needs may have an expectation of access.  Be ready to be flexible if there is a medical need for a toilet facility.

[10] This could simply mean thinking the Safety Plan through, meeting with employees to make sure they are on board with it, and making sure every employee has clarity about safety.  It can also mean working with your civil service agency or local attorney, so any contractual aspects are properly considered.  Since these are tense times for employees, good planning and communication about job duties is essential.

[11] In many library environments, it will be fine to add sanitization as a "duty as assigned," but in other places (with detailed job descriptions, a union contract, or contracts or policies that could impact the "assignment") it will not.  This concern cannot be answered generally; it will vary from library to library.

Tags: COVID-19, Emergency Response, Public Libraries, Reopening policies

Topic: Temporary disuse of a meeting room - 8/26/2020
My library's reopening plan calls for not allowing group meetings/ programs for a time. The...
Posted: Wednesday, August 26, 2020 Permalink

MEMBER QUESTION

My library's reopening plan calls for not allowing group meetings/ programs for a time.

There is some concern for a BOT member as to if the library can legally do this. The concern is if a community group or club that regularly meets in the library were to want to meet again, could they challenge the library in regards to this issue? In a nutshell, the question is "Do we legally have the right to suspend and not allow all meeting room use as the library reopens?"

As library director my thought process is that as long as the policy is being equally and fairly enforced to everyone then there should not be an issue. This does beg the question however as to what may happen if the city, which owns the building calls "eminent domain" and quickly demands use of a meeting space they own in an emergency circumstance. This is rare but has happened a few times in the past.

Any input you have would be greatly appreciated.

WNYLRC ATTORNEY'S RESPONSE

I have been looking at some of my post-COVID "Ask the Lawyer" responses, and they are pretty grim.  Such serious writing.

Of course, these are serious days, and operating during COVID-19 is a serious topic.

But I have been on the lookout for a chance for some joy, if not some outright levity.  And finally, this question supplies one!

Why would a question about temporary disuse of a meeting room make me happy?  Well, as some of you may have noticed, very little gratifies me more than emphasizing a library's autonomy.[1]

So, hear me rejoice: Yes, your library has the right to disallow all meeting room use in the interest of safety!

And if that isn't joyful enough, get ready for more good news: this is true whether your library is a tenant or a landowner, a public library or an association library, a library in a big city or a library in a small rural village!

Why is that?  If a chartered library in New York has assessed its unique space, its unique operational capacity, and its unique ability to operate safely, and as a result has adopted a Safety Plan that does not allow meeting spaces or on-site programming, then...there will be no meeting use or on-site programming.  It's as simple as that.

Now, that said, can someone try and complain about it?  Sure.[2] Can a building owner (like a town or a landlord) try and over-ride it? Yes.[3]  Could a pre-COVID contract be implicated?[4]  Yes.  But as an autonomous entity governed by an independent board, can your library make a Safety Plan and stick to it?  Yes.

As it should be.

Of course, within that autonomy is the obligation to steward and utilize library assets responsibly, and in compliance with the law.[5]  This is why the member's point about uniform enforcement and clarity is so important.  If the access is restricted for the Book Club, it needs to be restricted for the Comic Book Club, and even for the Garden Club.[6]  But after ensuring basic fairness and compliant use of library resources, the baseline decision about what facilities to allow access to during the pandemic is in the hands of the library's board and director.  And as I have said in many of my recent answers: they must put safety first.

Only one thing remains to be said: despite my obvious relish for the task, I want to assure the reading public that I still did my homework for this reply.  As of this date,[7] the only court rulings in New York to address litigation or complaints about library access as impacted by COVID-19 are numerous claims about transmission concerns impeding access to a prison law library[8] (now, in that case, I can understand why someone would complain).  But I found nothing regarding action against public and association libraries due to COVID-induced closure, reduced operations, and impediments to general access.  Hopefully it stays that way.[9]

Thanks for a good question and for some time on the bright side.

 

 



[1] It gives me a very "we the people" thrill that no amount of election-year jitters can override.

[2] I am sure that by now (August 25, 2020), MANY of you have heard MANY complaints...complaints about masks violating the ADA, complaints about the Library being too open or too closed, complaints that your signage is in the wrong font, or perhaps complaints about the smell of your hand sanitizer being too fruity.  These days, people just need to complain about something—it helps us feel more in-control.  I know I directed a very strongly worded message to my local government regarding document retention policies after the repeal of Civil Rights Law 50-a; for about 10 minutes, I felt really in charge of my own destiny.

[3] This is why a lease, or at least an agreement with a municipality who may own the library building, is a good idea.  At the bare minimum, such a document should address security/confidentiality, insurance for loss, the protocol for an on-site slip-and-fall, and the process for planning capital improvements.

[4] For instance, a facility rental agreement.

[5] For instance, once your meeting room is again accessible to the public, you can't let a start-up business owner hold a pop-up retail stand there to turn a profit, since that would risk compliance with several laws and tax regulations.

[6] Comics are very cool, but obviously your library doesn't want to play favorites.  And just because the Garden Club shows up with trowels is no reason to give them special treatment.

[7] August 25, 2020.

[8] There are already over a dozen of these.  A typical case can be seen in Vogel v Ginty, 2020 US Dist LEXIS 148513 [SDNY Aug. 14, 2020, No. 20-CV-6349 (LLS)].

[9] It will be hard enough sorting out the impact on budgets and various regulatory requirements.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Meeting Room Policy, Policy, Reopening policies

Topic: Asking COVID-19 symptomatic patrons to leave - 8/18/2020
In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask cust...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask customers to leave the public building if they are exhibiting any visible COVID symptoms? If so, are there benchmarks for how extreme symptoms should be or how policies should be worded? There are of course patron behavior policies in place allowing for the removal of anything disruptive, which can include noise or inappropriate behavior. There are some members of our leadership team who believe our safety reopening plan should include provision specifically mentioning symptoms of COVID-19 and the staff's/ library's right to remove them if symptoms are exhibited. There are other concerns that library staff are not medical professionals and we are not able to determine if a few sneezes and coughs are common colds, allergies or COVID. Attached is our library's current reopening plan.

WNYLRC ATTORNEY'S RESPONSE

As the member writes, it is very difficult to determine if some physical factors—coughing, a flush, seeming malaise—are in fact symptoms of COVID-19.  Confronting a patron with suspected symptoms can also lead to concerns impacting community relations, privacy, and the ADA.

A good Safety Plan addresses this concern, without requiring patrons[1] to be removed mid-visit from the library.

To position libraries to address the impact of patrons with suspected symptoms, New York's "Interim Guidance for Essential and Phase II Retail" (issued July 1, 2020)[2] states:

CDC guidelines on “Cleaning and Disinfecting Your Facility” if someone is suspected or confirmed to have COVID-19 are as follows:

  • Close off areas used by the person suspected or confirmed to have COVID-19 (Responsible Parties do not necessarily need to close operations, if they can close off the affected areas).
  • Open outside doors and windows to increase air circulation in the area.
  • Wait 24 hours before you clean or disinfect.
  • If 24 hours is not feasible, wait as long as possible.
  • Clean and disinfect all areas used by the person who is suspected or confirmed to have COVID19, such as offices, bathrooms, common areas, and shared equipment.
  • Once the area has been appropriately disinfected, it can be opened for use.
  • Employees without close or proximate contact with the person who is suspected or confirmed to have COVID-19 can return to the work area immediately after disinfection.  Refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure[3] for information on “close or proximate” contacts.  [4]
  • If more than seven days have passed since the person who is suspected or confirmed to have COVID-19 visited or used the retail location, additional cleaning and disinfection is not necessary, but routine cleaning and disinfection should continue.

[emphasis on "suspected" has been added]

In other words: your Safety Plan, as informed by the most recent guidelines, should leave nothing to chance.  By using this procedure, library staff are never put in the position of having to guess, ask, or consider if a patron's coughing, sneezing, or other behaviors are COVID-19...rather, the moment the possibility is "suspected," the Plan kicks into action.

Of course, if a patron is properly masked, some of the risk of exposure is limited, even if they are infected (this is why we wear masks and identify areas with six feet of clearance in the first place).  And if a patron removes their mask mid-visit, refuses to keep appropriate distance, or refuses to spray down equipment after using it,[5] THAT person can be asked to leave, simply as a matter of policy—whether they are exhibiting symptoms, or not.[6]

So to answer the question: no, it is not advisable to ask patrons to leave the public building if they are exhibiting any visible COVID symptoms, for exactly the reasons the member provides.[7]  Rather, it is required that your Safety Plan keep people distant from each other, and that the library be ready to address any real or suspected exposure as quickly and effectively as possible. 

That said, having signage that reads "Safety first!  Patrons who are concerned about transmission of germs can arrange curbside service by [INSERT]" is a great way to remind people that if they are having an "off" day, there are many ways to access the services of your library.

I wish you a strong and steady re-opening.



[1] This answer does not apply to employees and visitors like contractors, who must be screened.

[4] I note that the DOH's "Interim Guidelines" do not include guidance to staff with suspected (as opposed to confirmed) exposure.  If an employee feels they were exposed to a suspected case of COVID-19, however, that will impact their answers on their next daily screening, which will trip consideration of whether they can report to work.

[5] Or whatever other safety measures a library has identified.  It is inspiring to read the variety of tactics out there, as listed at https://www.nyla.org/covid-19-library-reopening-plan-database/?menukey=nyla.

[6] Another member raised this consideration in this "Ask the Lawyer" from earlier in July 2020: https://www.wnylrc.org/ask-the-lawyer/raqs/153

[7] Of course, if a patron is having a medical event and you have an immediate concern for their well-being, call 911.

Tags: ADA, COVID-19, Emergency Response, Policy, Privacy, Reopening policies, Work From Home

Topic: Working from home during reopening - 8/18/2020
I work at a public library that is gradually reopening to the public. We employ quite a few librar...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

I work at a public library that is gradually reopening to the public. We employ quite a few librarians who trend older and have underlying health conditions. Many of these staff have been working remotely for the past few months, but not necessarily on tasks essential to their positions. As we begin to recall employees to the physical worksite, some are requesting to continue working from home, and/or for indefinite relief from working directly with the public, because of their vulnerability to Covid-19 complications.

While we are working to accommodate our employees, we also realize that working directly with the public is an essential part of being a *public librarian*. So how can we effectively accommodate public librarians who are asking to *not* work with the public?

We have done this during our work-from-home phase, when our Library was required to remain closed. But I don't believe that we can sustain this over the longer term. At some point, we may have to hire people to fill the in-person needs of the Library, and won't have enough "at-home" work for existing staff to do.

Thank you for your guidance.

WNYLRC ATTORNEY'S RESPONSE

This is a heart-breaking question, and I am sure it has been a hard process to get to this phase in your operations and planning.

In the state of New York, it can be a violation of both state and federal law to deny a person an employment opportunity on the basis of age or disability.  However, when a person cannot perform their essential duties due to a health concern, and no reasonable accommodation can help them do so, that person may have to leave the position.

Which brings us to the member's question: "So how can we effectively accommodate public librarians who are asking to *not* work with the public?"
There is a lot of wiggle room in this type of question, because the answer will change from library to library, but that also makes it hard to answer generically. 

Since I can't give an answer, I can do the next best thing: an array of questions to help members assess their own library's response to this type of disability accommodation[1] request:

Consideration

Why this is important

Your answer:

 

Are the impacted employees Civil Service?

 

 

Any assessment of job duties, changes, and consideration of alternation of essential duties should be done with your Civil Service agency's input.

 

 

Does your library have to abide by the Americans with Disabilities Act, and if so, what are its precise obligations?

 

 

Precise ADA obligations change based on library type, size, location, and funding. 

 

This is a factor that should already be known and addressed in the library's policies or employee manual, or with input from your Civil Service agency.

 

 

Does your library have to abide by the New York State Human Rights Law?

 

 

Precise NYHRL obligations change based on library type, size, location, and funding.

 

This is a factor that should be known and addressed in the library's policies or employee manual or with input from your Civil Service agency.

 

 

Are the impacted employees governed by a collective bargaining agreement ("union contract")?

 

 

The union contract may control how employees’ duties may be assigned/re-assigned and offer additional protections and considerations.

 

 

Do you have a copy of each job description involved, and are those job descriptions current and accurate?

 

 

Before assessing if an employee can be granted a reasonable accommodation, or must leave their job due to disability, make sure their job duties and reporting structure are accurately set forth in their job description.

 

 

Looking at the job description, what are the elements that the employee is stating that they cannot perform due to medical factors?

 

 

This should be confirmed in writing between the library and the employee (and as needed, review with Civil Service).

 

 

What accommodations can allow the employee to still perform their essential function?  Can those accommodations be implemented by the library?

 

 

Isolating these factors, and confirming them with Civil Service when they impact job duties, will position the library to assess if accommodations (like not coming into close proximity with the public) is possible, and if so, if they are reasonable.

 

 

After considering its legal obligations, operational needs, and the specific request, can the library reasonably accommodate the request?

 

 

The answer may be "yes," or "no."  In the member's scenario, if an essential duty requires activity that, even with all applicable safety provisions, cannot be done by the employee due to a medical concern, the key question is: can the library accomplish the essential element?  As the member writes, that might be hard.

 

This is the part to review with your library's attorney, prior to acting on any determinations.

 

Look at the big picture, and plan accordingly. 

 

When the assessment/s is/are done, look at the overall impact.  How will this impact the Plan of Service?  Or employee morale?

Develop a plan to get any messaging right, while respecting employee privacy.

 

This is the part where you review the big picture with the board personnel committee, civil service agency, and/or attorney.  The goal is for directors to be empowered to make decisions about workforce matters, with appropriate support for the plans.

 

Effect decision-making.

 

Plan out any accommodations to ensure they are supported by your COVID-19 Safety Plan, and create a schedule for implementing any necessary workforce changes.  Make sure the plan makes room for communicating changes to employees, in a way that will build team cohesion.[2]

 

Generate documentation to show compliance with the plans.

I know no chart can take the place of a solid plan that considers the needs and resources of your library, the well-being and privacy of your employees, but hopefully this chart can help you develop one. Together with the more general guidance in an earlier answer, these are the fundamental steps to consider.

Thank you for being willing to pose a difficult question.  I wish your library well at this difficult time.



[1] The employee can call it whatever they want, but a request to change job duties on the basis of a medical condition (including the condition of having heightened vulnerability to infection) will generally be considered an accommodation request under the ADA or the New York State Human Rights Law.  Therefore, any library entertaining such a request should evaluate is as they would a disability accommodations request, which as stated in this answer, will vary from library to library, based on their policy (which should be based on the precise way the laws apply to that specific institution).

[2] Yes: It can be very tough to acknowledge someone is leaving, and then try to focus on "team cohesion."  And it can be doubly tough when a medical concern, and inability to offer an accommodation, leads someone to leave on disability (which of course is confidential, and cannot be shared by the library).  But at the same time, the right message can help with employee morale.  This is why strategizing with an HR professional or Personnel Committee Chair, to organize some talking points on those things, can be so important.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies

Topic: Board of Trustees Approval for Library Reopening Plans - 8/3/2020
Should a board of trustees vote on their institution’s COVID-19 Safety Plan?  Or should...
Posted: Monday, August 3, 2020 Permalink

MEMBER QUESTION

Should a board of trustees vote on their institution’s COVID-19 Safety Plan?  Or should the adoption of the Plan be left entirely to the institution’s director or executive director?

WNYLRC ATTORNEY'S RESPONSE

Who is “in charge” of a library’s safety plan--the trustees, or the director?

It’s tricky, but if you bear with me, you will get an answer.

When it comes to who is “in charge” at an organization, boards must respect the authority of those they employ to lead (the director).  At the same time, the organization, including the director, must be guided by the work of those fiduciaries ultimately responsible for it (the trustees).

This dynamic can play out in many ways, but in a healthy board-director dynamic, the board lives up to its responsibility as a fiduciary by honoring the authority of the director. So to assess a question like this, I start with the board’s responsibility…which is also the responsibility of the library.

What is the responsibility of a library open during COVID-19?  Here’s the lay of the land, straight from the “NY Forward Lookup Tool”:

Image is a screenshot from the NY Forward tool, with arrows pointing out the text for applicable guidelines. This text is linked below the image.

The “applicable guidelines”[1] I have so carefully underlined (as found July 6, 2020, at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/RetailMasterGuidance.pdf)  state, in relevant part:

The Responsible Parties – as defined below – are accountable for adhering to all local, state and federal requirements relative to retail business activities. …

The proprietor/operator… or another party as may be designated by the proprietor/operator (in either case, "the Responsible Parties"), shall be responsible for meeting these standards.”

As part of the “applicable guidelines”, the “Responsible Parties” must certify having read and understood the obligation of their institution to “operate in accordance with such guidance,” as shown here[2]:

Image is a screenshot with an arrow pointing to the italicized text mentioning the Responsible Parties. This text can be read on the NY Forward Applicable Guidelines page.

None of this expressly requires that the person signing the certification, or the developer of a Safety Plan, is any particular person or entity.  Rather, the “owner or agent” of the library (who could be an officer of the board with signing authority from the bylaws, the director, another employee, or even an attorney operating on instructions from the library/client) signs the certification, and at some point, they adopt a Safety Plan.  That’s it.

But while there is no prescribed process for the Safety Plan, a look at some of the things the Plan must address is instructive.  For instance, the above-linked guidance states:

Signage should be used to remind employees and customers to:

  • Cover their nose and mouth with a face covering when six feet of social distance cannot be maintained.
  • Properly store and, when necessary, discard PPE.
  • Adhere to physical distancing instructions.
  • Report symptoms of or exposure to COVID-19, and how they should do so.
  • Follow hand hygiene and cleaning and disinfection guidelines.
  • Follow appropriate respiratory hygiene and cough etiquette.

As I have written about elsewhere[3], the requirements listed above, among other things, become temporary modifications to a library’s Code of Conduct.  In order to enforce social distancing and use of PPE in the library as required by the State, a library must ultimately tie a patron’s failure to do so to its Code and process for restricting access to patrons.[4]  For that reason alone (and there are many, many others, including a Plan’s impact on conditions for employees, procurement practices, security procedures, budget, etc.), the board should be the entity that adopts the Plan.

This is not to say that a director with adequate experience to draft a library’s Safety Plan cannot be the primary author of the Plan.  In fact, the director (and other employees with high familiarity with certain operations) is likely the person best situated to envision adjusted floorplans, shift schedules, workflows, signage posting, employee temperature monitoring, and employee training methods (to name just a few), all of which must be addressed in the Safety Plan. 

But because of the many high-stakes areas a Safety Plan impacts, a library’s board should be the entity accountable for adopting it and ensuring it is updated at regular intervals.  On the flip side, after the Plan is adopted, the director will be the authority responsible for seeing that the Plan is followed.

The board has this accountability for passing the Plan because a COVID-19 Safety Plan is not just a tool for safety, but also a mechanism of legal compliance and risk management.  When you stop and think about it, most policies or plans that relate to safety, legal compliance, and risk management—things like workers’ compensation insurance policies, sexual harassment and civil rights policies, and fiscal controls policies—are all things that a board is ultimately accountable for.  While the director may have the authority to ensure compliance with them, they are adopted by a board. And that is as it should be.

Of course, it can be a challenge for a small board to meet as often as needed to keep a COVID-19 Safety Plan evolving in light of new research, evolving library operations, and on-the-ground improvements.[5]  For such situations, it is good to consider an approach like the one set out in the below template resolution:

BE IT RESOLVED that the board hereby adopts the Safety Plan considered at this meeting of DATE; and

BE IT FURTHER RESOLVED that the Plan be posted in the Library, as required by the Plan, within 24 hours of the passage of this Resolution; and

BE IT FURTHER RESOLVED that to ensure the Safety Plan is updated in a manner that is conducive to optimal operations of the Library, the Director, [in consultation with INSERT[6]] is authorized to update the Safety Plan as needed, consistent with CDC and OSHA guidelines, and shall present the current updated version then in effect at each subsequent meeting of the board, to be reviewed and ratified by same.

 

So, what is the answer to the member’s questions? 

There is no “right” answer to this, but lots of factors point to the board serving as a library’s COVID-19 Safety Plan’s ultimate authority.  That said, in passing such a plan, a board should draw from the experience, and support the executive authority, of the library’s director. 

Like all healthy board-director relationships, this approach requires listening, learning, a good sense of roles and boundaries, and mutual respect.  A tall order in frantic times, but one that good planning and careful consideration[7] can almost always bring about.

Thank you for an important question.

 



[1] You will no doubt be shocked to learn that my law school did not have a “graphic design” elective for marking up NY State pandemic policy documents.

[2] I imagine many directors and board members have gone through this triad of assurance many times, and are sick of it.

[4] While Executive Order 206.39 granted any business the right to refuse a person access if they are not wearing a mask (if they can medically tolerate one), I am not comfortable with any lingering consequences for refusal to wear a mask or otherwise abide by the safety plan unless they are tied to the due process in a Code of Conduct.

[5] Larger libraries will have already had a business continuity, disaster recovery, and perhaps even an all-hazards response plan in place.  The approach outlined in this answer is drafted with smaller libraries, who typically don’t have such deep resources, in mind.

[6] The option in brackets here is to allow revisions in consultation with some back-up for the director: a committee of the board, or the chair of the board, or an independent consultant as authorized by the board, or the local Health Department. 

[7] And frequent re-reads of the “Handbook for Library Trustees of New York State,” found at http://www.nysl.nysed.gov/libdev/trustees/handbook/.

Tags: COVID-19, Emergency Response, Reopening policies, Board of Trustees

Topic: Requirements for public access to SUNY libraries - 7/27/2020
[Submitted from a SUNY Library] (1) What are the requirements for a SUNY library to provide acce...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

[Submitted from a SUNY Library]

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?
(2) Are their specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?
(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?
(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

WNYLRC ATTORNEY'S RESPONSE

This is a deep array of questions, requiring a deep array of answers.

But let’s start with the basics.

There are 64 SUNY campuses, some with more than one library.

What’s cool about these libraries?  They aren’t just collections of books on a campus, but distinct entities within their institutions, governed by the body of laws that apply to all libraries in New York, as well as the law that is SUNY-library specific.

The “SUNY-library specific” law is Education Law 249-a, which states:

The state university trustees and the board of higher education of the city of New York are hereby authorized to establish such rules and regulations as may be necessary and appropriate to make provision for access and use by the residents of the state of the libraries and library facilities of the public institutions of higher education under their respective jurisdictions.

In other words: SUNY and CUNY have libraries, and the boards of SUNY and CUNY can set those libraries’ rules, including the rules governing access.

SUNY’s[1]  board has established “such rules” by, among other things, adopting a policy on “Public Access to SUNY Libraries[2]  which states:

It is the policy of the State University of New York (University) that the public is given access to University libraries insofar as possible. Since implementation of this policy has fiscal and administrative implications, campuses may extend the facilities of their libraries to the public whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.

 

What does this mean for public access to those libraries?

State law gives SUNY broad authority “to establish such rules…for access and use by the residents of the state.” SUNY then uses that authority to develop a policy requiring “that the public is given access to University libraries insofar as possible.”  BUT, after asserting that broad goal, SUNY allows individual campuses to tailor that access based on the “fiscal” and “administrative” considerations of individual institutions.  So while access to the public is the stated goal, the conditions for access are really up to the individual libraries (and the academic leadership they report to).

I tooled around a few SUNY library web sites (I couldn’t resist the Charles B. Sears Law Library at SUNY Buffalo, my alma mater), and each have their own unique conditions for giving the public access.  Some make it easier to find that information than others.  I saw a range of conditions for access…anecdotal evidence that the libraries are using the latitude granted to them by SUNY policy.

And with that background established, I’ll answer the questions.

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?

While the law only goes so far as to “authorize” SUNY to provide for public access, SUNY-wide policy is that “the public is given access to University libraries insofar as possible… whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.”

So my answer to the first question is: based on SUNY policy, public access to a SUNY library must be provided insofar as possible, provided the use by the public doesn’t interfere with the use of the students and faculty, and the burden of public use doesn’t throw off the budget.[3]

(2) Are there specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?

Absolutely, there are requirements and potential repercussions for access to libraries at state institutions.  I could write an entire book on them (and I bet someone has[4]), but here is my quick summary:

  • Requirement: develop budgets, staffing plans, and operational policies that ensure the public is given access to University libraries “insofar as possible.”
  • Requirement: in coordination with Campus Safety or Campus Police, develop a process to address the most serious public patron behavioral concerns. 
  • Requirement: develop a privacy policy regarding the rights students, employees, and public patrons have under CPLR 4509.
  • Repercussion: be ready to address civil rights concerns related to the library’s status as a public institution.

(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?

For readers not familiar with it, “Section 108” is the portion of the Copyright Act, which gives special exemptions from infringement to libraries and archives that are open to the public.

Section 108 does not go into great lengths regarding what the requirement “open to the public” means, but some insight can be gained from how it handles access to special collections closed to the general public; such collections qualify for Section 108’s protection so long as they are open “to other persons doing research in [that] specialized field.”  So it is clear that “open to the public” is not intended to be a carte blanche free-for-all.

The current pandemic and SUNY’s efforts to combat it will certainly impact SUNY libraries’ ability to be “open to the public.”  However, I feel confident writing my conclusion that any institution that temporarily restricts all patron access will not be found to have not meet the requirements of section 108.  And I feel just as confident saying that scheduled visits by appointment—if that is what a SUNY library needs to do to ensure safety—would not cause a 108 concern, either.[5]

That said, I cannot feel the same confidence for any Safety Plan that completely and utterly removes all public access.  Public access, even if severely restricted, must still be a component in order to meet the requirements of 108.

(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

Broadly and boldly speaking: yes.

BUT.

As discussed at the beginning of this answer, the law of the state of New York and the policies of SUNY give a great deal of latitude to libraries on a campus-by-campus basis.  Different campuses exercise this latitude in different ways.  This means that while the library in one SUNY location may be operating per a Safety Plan confirmed by a central coordinator, another library may be given a directive to develop their own. 

Or, as (former[6]) SUNY Chancellor Kristina M. Johnson put it:

We understand that…each of our campuses is a complex ecosystem with regular engagement with their respective surrounding communities.

Within those different plans will be different solutions for the safe operations of different sites.  Some of those plans will call for masks, because masks will be the only way the planned operations will be able to be conducted safely.  Other plans may only include modified operations that may be performed safely without masks.  And of course, any plan requiring a mask will include the proper ADA accommodations information for those who are not able to wear one.

While the country has watched as some people challenge the requirement to wear PPE on the basis of civil rights, a limited requirement to wear a certain type of protective gear for a narrowly tailored purpose with a general application is not likely to be found a violation of the First Amendment. But of course, when it comes to civil rights, the devil is often in the details.  If, for instance, only a certain type of facemask was required, and that facemask type did not work well with a certain body type, or the need to wear a hijab, it is possible that could trigger an ADA or First Amendment claim. The guidance being assembled by the Center for Disease Control and the Occupational Safety and Health Administration takes into account the diversity of bodies and identities that Safety Plans will need to serve. By using properly credentialed resources and thinking through Safety Plans from multiple perspectives, a SUNY library should be positioned to deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety.

Last note

In responding to these questions, I am mindful that general legal services are provided to SUNY institutions through the office of the NY State Attorney General, and many campuses have lawyers on staff. Therefore, to the greatest extent possible, any SUNY library, department, center, school, college or university finalizing a Safety Plan should take care that whenever possible, coordinated guidance from SUNY’s recognized legal advisers is incorporated. (Very often, this will have been done at the level where the institution is planning its emergency response.)  I am always gratified when a SUNY lawyer, or another lawyer, calls me to discuss my work for libraries, and I welcome those calls.[7]

As of this date (June 26, 2020) I have found no publicly accessible model safety plan or guidance from SUNY HQ with regard to the resumption of operations.  Rather, the SUNY page for COVID questions shows that the State University of New York is very much in an assessment and response mode, and the SUNY Library Consortium’s page shows that plans are still in development.[8] I am sure that will change as the situation evolves, and I encourage people to be attentive to that page, and their own administrations, for further specific guidance.   At the same time, since no one knows a library better than the librarians who works at it, I encourage pro-active assessment and formulation of access and safety plans by library leadership, informed by the people who work and study there.

This guidance was assembled directly from available materials, and while not legal advice, it is consistent with published SUNY materials and the law.  I hope it is helpful to SUNY libraries as you consider the continuation of your operations.

Thank you for a great array of thoughtful questions. I wish our SUNY libraries much health and strength for the days ahead.

    



[1] The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.

[2] Found on June 8, 2020 at https://www.suny.edu/sunypp/documents.cfm?doc_id=330 and not to be confused with the “Open Access To State University Libraries” policy found that same day at https://www.suny.edu/sunypp/documents.cfm?doc_id=329.

[3] Having sat through budget meetings of all types as a student leader, journalist, academic administrator, and lawyer, I realize that the words “fiscal” and “mission” can be applied to many divergent ends.  Let’s not go there, this is about the law.

[4] I will ask my paralegal Jill to research this question and alert me if she finds one.  If she does, we’ll update this footnote.  Otherwise, you’ll know we didn’t find one.

[5] I am punting on the very practical consideration of the recent Supreme Court ruling regarding sovereign immunity, which arguably positions SUNY to not be very concerned about qualifying for protection under 108.  I am punting because, as the court put it, I am sure SUNY does not want to be seen as a “serial infringer.”  For more on that, see https://www.scotusblog.com/case-files/cases/allen-v-cooper/

[7] (716) 464-3386

[8] This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.

Tags: Academic Libraries, COVID-19, Emergency Response, Reopening policies, Section 108, Public Access, SUNY

Topic: Does a mask requirement policy violate the ADA? - 7/8/2020
Our library has taken the next step in re-opening and is welcoming the public back into our buildi...
Posted: Wednesday, July 8, 2020 Permalink

MEMBER QUESTION

Our library has taken the next step in re-opening and is welcoming the public back into our building.  We have a Safety Plan, and we have posted signage in key areas to help the public follow our safety practices, including staying at least six feet apart whenever possible, and every visitor using hand sanitizer upon entry and (if over the age of two) wearing face coverings at all times.

A patron who cannot wear a mask raised the possibility of our policy being a violation of the Americans With Disabilities Act (ADA).  They patron is concerned that this policy discriminates against those who cannot “medically tolerate” a mask.

Are we in the wrong to require masks?

WNYLRC ATTORNEY'S RESPONSE

It is not wrong to require patrons to wear masks.  As of this writing (July 7, 2020), qualified experts agree that masks remain one of the most effective ways to stop the transmission of COVID-19.[1]  In an environment storing circulating materials[2] and shared space, this is a critical step for reducing the risk to library employees, and the public.

That said, even the most well-intentioned efforts can step on the rights of others, including rights under the ADA.  How does a library promote safety, while abiding by the ADA?

The key is to implement and enforce the mask-wearing requirement in a way that doesn’t overstep or unnecessarily limit the access of those living with a disability.[3]

Here is a step-by-step process to help a library assess, draft and enforce a mask-wearing requirement so it is harmonized with the protections of the ADA.

NOTE: For this exercise you will need: a copy of your Safety Plan, the person or team who writes/updates the Safety Plan, a copy of your library’s floorplan, and the documents linked in the steps below. 

Estimated time of activity: 1.5 hours.

Step 1

Isolate the language in your Safety Plan requiring patrons to wearing masks. This is your “Patron Mask Enforcement Language” (“PMEL”).[4]

 

Step 2

Look at your PMEL. 

Is it a Uniform Use requirement, such as: “All patrons must wear masks upon entry, and the mask must remain in place at all times during your visit, in all areas.”

Or

Is it a Circumstantial Use requirement, such as: “All patrons must wear masks upon entry, and the mask must remain in place at all times during your visit, except when seated in our Wipe Down Reading Area,[5] where seating is at least 7 feet apart, and patrons must spray down the surfaces in their zone after use (limit 20 minutes).”

 

Step 3

Look at the floor plan.  Is there ANY place in the library where current CDC-advised safety practices can be used to create a place for “Circumstantial Use” of masks?  In other words, is there any place where, after considering all the risks to mitigate through measures other than a mask, can you offer an official mask-free zone to patrons?

For many small libraries, the answer will be a hard “NO.” The space will be just too small.  And for many libraries with more space, the answer will again be a hard “NO,” based on budget; they may have the space, but the extra resources spent to monitor and sanitize the area are just too costly.

When the Safety Plan team reaches a conclusion, document the analysis, and if any zone can be so converted, mark it on the floor plan (which you will attached to the Safety Plan).  For example: The Safety Plan Team met on DATE to review the floor plan and see if any area could be converted into a mask-free zone for patrons.  Based on space, available furniture, costs, and proximity to circulating materials, the team concluded [whatever you concluded].

 

Step 4

If your library does develop a mask-free zone for patrons, the rules and cleaning protocols for the area must be robustly detailed in your Safety Plan.  The supplies for patrons to do their own spray-down upon arising from the designated seating must be routinely re-stocked.  The rules must be well-posted and strictly enforced. 

 

Step 5

Now, back to the ADA.  Does your Safety Plan have a section on how a patron can request accommodations while the library is operating under the Plan?  If the answer is “no”, this is a good thing to consider adding.

Why?

I have written previously about libraries’ shifting obligations under the ADA.[6]  All of that previous material applies to this situation, but of course, now we have the extra layer of COVID-19. 

Always, with ADA, the goal of the library should be to find a way to ensure access.  That said, some access will not be as a patron envisions, and some requested accommodations are just not implementable.  Because of this, as I wrote at the top of this answer: “The key is to implement and enforce the mask-wearing requirement in a way that doesn’t overstep or unnecessarily limit the access of those living with a disability.”  When modifying operations to reduce transmission of COVID-19, that means posting information about accommodations and access right along with the other signage you’re developing and posting as part of the Safety Plan.

So with all that as background, “Step 5” is answering this question:

“Does our Safety Plan address access and accommodations as required[7] by the ADA?”  If the answer is “no,” continue to Step 6.

 

Step 6

If you have decided you must add some ADA-related language to your Safety Plan, you can do so by answering the following questions:

a.  How does a person contact the library to request reasonable accommodations during a time of adjusted operations?

b.  What reasonable accommodations can your library be ready to offer to the following common safety measure-related issues:

  • inability to wear a mask
  • allergy to hand sanitizer
  • chemical sensitivity (triggered by increased use of cleaning products)
  • requested assistance requires library employee to get closer than six feet (for instance, help with using computer)
  • patron is especially vulnerable to COVID-19 due to other risk factors

Some of the requested accommodations for the above issues will be simple.  Can’t use hand sanitizer?  We’ll provide water, a disposable towel, and soap.  Can’t wear a mask?  We don’t have a mask-free zone, but we’ll be happy to assist you over the phone and you can pick your books up curbside.  Need extra help at the computer?  We’ll figure it out, but our employees have been instructed to stay at least six feet apart unless behind a plexi window, and that is non-negotiable.

Some accommodations are harder.  You’re allergic to the spray-down solution we bought in bulk?  Sorry, we can’t buy a different gross of spray until next month; please let us know what ingredient bothers you and we’ll see if our procurement folks can find something different. Until then, we’ll be happy to assist you over the phone and you can pick your books up curbside.  You have pre-existing conditions that mean you can’t go in a public area, even if there is a Safety Plan being enforced?  We are so sorry to hear that. We miss you.  We wish this whole thing was over.  We are here for you by phone, e-mail, or the internet, and can work with a designated person who will pick up your books.

The key is to ensure that people know how to direct the requests, and that the library is ready to assess them promptly. 

A good way to organize this is to create a section of the Safety Plan providing for signage stating: “For patrons needing disability accommodations while the library is operating under conditions to reduce the transmission of COVID-19, please call NAME at NUMBER, or write to EMAIL or ADDRESS.  You will also find this information in our Safety Plan.  The library is committed to safe access for all.”

 

Step 7: Feeling Confident

Okay, you have followed the six steps for assessing your Safety Plan and building out its provisions with regard to ADA.  Do you feel confident in your approach?[8]  For teams that want a little extra “oomph” in their handling of COVID-19-related accommodations requests, here is some law:

First, here is the language from New York’s Executive Order 202.34, regarding the ability of businesses to require and enforce the use of masks:

Business operators and building owners, and those authorized on their behalf shall have the discretion to ensure compliance with the directive in Executive Order 202.17 (requiring any individual over age two, and able to medically tolerate a face-covering, be required to cover their nose and mouth with a mask or cloth face-covering when in a public place), including the discretion to deny admittance to individuals who fail to comply with the directive in Executive Order 202.17 or to require or compel their removal if they fail to adhere to such directive, and such owner or operator shall not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of such directive. Nothing in this directive shall prohibit or limit the right of State and local enforcement authorities from imposing fines or other penalties for any violation of the directive in Executive Order 202.17.  This directive shall be applied in a manner consistent with the American with Disabilities Act or any provision of either New York State or New York City Human Rights Law, or any other provision of law.

As reviewed in Step 6, “consistent with the Americans with Disabilities Act,” does not mean that those who cannot medically wear a mask are automatically allowed maskless entry as an ADA accommodation.  Rather, a place must see if the risk posed to the public by the maskless individual can be mitigated by a “reasonable” accommodation.  For libraries that can have a mask-free zone, they can be.  For a tiny library where any breath will land on circulating materials, it likely cannot. 

The key to doing this right is thoughtful assessment and documentation: replying to ADA requests should not be a gut-check exercise.  It should be considered, thoughtful, and documented as shown in steps 3 through 6.  Whenever possible, a library assessing accommodations request should consult a lawyer.

Second, here is a pep talk from the US Department of Justice, the body who enforces ADA:

The Department of Justice Warns of Inaccurate Flyers and Postings Regarding the Use of Face Masks and the Americans with Disabilities Act

Assistant Attorney General for the Civil Rights Division Eric Dreiband reiterated today that cards and other documents bearing the Department of Justice seal and claiming that individuals are exempt from face mask requirements are fraudulent.

Inaccurate flyers or other postings have been circulating on the web and via social media channels regarding the use of face masks and the Americans with Disabilities Act (ADA) due to the COVID-19 pandemic. Many of these notices included use of the Department of Justice seal and ADA phone number.

As the Department has stated in a previous alert, the Department did not issue and does not endorse them in any way. The public should not rely on the information contained in these postings.

The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.
The public can visit ADA.gov or call the ADA Information Line at 800-514-0301 (voice) and 800-514-0383 (TTY) for more information.

[emphasis added]

So, while ADA, or the disability protections of the New York Human Rights law, most certainly could apply to a person denied access to a covered institution, as can be seen, it’s just not that simple.  If your library builds out the ADA provisions of its safety plan, listens to ADA-related requests carefully, and assesses them promptly, you can feel confident that you are doing your best to provide ADA access.  And if you have the slightest uncertainty about any of those steps, you should contact a lawyer.

However, having seen how these things go, here is a final thought: people who are making ADA requests can feel vulnerable.  It can be scary to admit a disability; it is an act of trust to request accommodations.  On the flip side, many people with disabilities have learned their rights, and fight for them as warriors.  Many parents of children with disabilities have learned to be ardent advocates. 

All of this can create tension (at any already tense time).  So any ADA request, no matter what the tone or context, should be met with a simple “I hear this request.  We will work on this as quickly as possible.  This is important to us.”  Then get the answer, and document it, taking care to not let too much time pass.

Thank you for an important question.



[4] I really tried to come up with a sassy acronym for this.  The best I could do, even after 2 cups of coffee, was “MAP” for “Masking All Patrons.”  That sounds AWFUL so “PMEL” it is.

[5] I won’t lie.  I didn’t try to come up with a better phrase than “Wipe Down Reading Area.”  But I am sure someone out there will.

[6]  https://www.wnylrc.org/ask-the-lawyer/raqs/65 Yes, this is one of the documents to have in the work packet.

[7] Bearing in mind that different libraries will have different requirements.

[8] NOTE: While this Executive Order does not mention the other requirements a business can make a condition of entry, since a library can make adherence to its Safety Plan a condition of the standing Patron Code of Conduct, if a library so chooses, it has more than just the Order to address concerns (this also assures all appropriate due process).  See https://www.wnylrc.org/ask-the-lawyer/raqs/138 for a discussion of how to enfold your Safety Plan into your Code of Conduct.

Tags: Accessibility, ADA, COVID-19, Emergency Response, Reopening policies

Topic: Policies for employees returning to work during COVID-19 - 5/21/2020
Public and Association libraries have questions about making policies creating conditions that mus...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

Public and Association libraries have questions about making policies creating conditions that must be met for library staff to return to work. Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?

WNYLRC ATTORNEY'S RESPONSE

I had initially considered bundling this question with another submission about temporary actions or policies during COVID-19.  After all, both questions relate to policy, and a big goal of “Ask the Lawyer” is to provide legal information efficiently.

But after drafting that answer, and considering this question further, I did away with that notion.  The member has isolated an incredibly critical concern about employee/employer safety and authority.  It is a question that demands—and deserves—its own consideration.

But before we dive into the legalities, let's consider the practical implications of the member’s question.  Why would an employer want to “exclude vulnerable employees” from the work site? On the flip side, why would an employer want to set policies “requiring” a class of employee termed “non-vulnerable” to return to work?

Near as I can figure, the employer would want to do this to promote safety; a laudable goal.

However, that is not precisely the approach an employer in New York State is empowered to take.

Under both the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law (“HRL”), employers are barred from discriminating against employees on the basis of real or perceived disability. This means that a NY employer who knows—or suspects—an employee might be particularly “vulnerable” (in this case, to COVID-19, but in other cases, due to pregnancy, or other medical conditions), is barred from simply labeling that employee “vulnerable” and taking steps to limit or change the terms of their employment on the basis of that conclusion. 

Rather, disability law is set up to empower employees to identify their needs, and then—under the most confidential circumstances possible—work with their employer to receive reasonable accommodations in consideration of those needs.

For example, a person whose medical history means that they might be more vulnerable to COVID-19 would work with their medical provider to provide documentation setting forth the risks and requesting a reasonable accommodation on the basis of those risks.

Employers are always welcome to let employees know the ways in which they may request accommodations. For instance, as libraries, museums, and archives consider limited or full reopening, employers can transmit those plans to their employees, and invite them to submit any request for accommodations based on the anticipated additional exposure to on-site visitors.

Think of it in the same way your institution might think of planning a large event that would invite the maximum number of people possible to your library or a rented venue. When planning for an event that will attract a large number of people, almost every institution will consider the need to accommodate people who use mobility devices. They might not contact those people in advance, even if they know they're coming…rather, the event will be planned with those accommodations in mind.

A good example of this, of relevance to the current COVID-19 crisis, is an employee with a respiratory disability.  As we know, people who have had respiratory illnesses in the past may be especially vulnerable to COVID-19 now.  These are people who may request accommodations—potentially including the ability to work off-site—based on a disability (a good list of accommodations for respiratory issues can be found here, on the Job Accommodation Network).

So, with all that being said, the answer to the member’s questions (Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?) is: NOT AS SUCH.

However.

Employers can most certainly, when otherwise allowed by law, policy, contract, and Executive Order, require employees to return to work.  After that…

Once an employer is able/decides to re-open, in addition to any re-opening conditions, the employer must consider any requests for reasonable accommodations.  This could absolutely include modifications for those whose disabilities render them vulnerable to COVID-19.  The employer can even generally pre-plan to offer those modifications.  Or they can make working from home, or working on-site, optional (if the work can, in the sole determination of the employer, still be done).  But what they can’t do is pre-sort their employees by “vulnerability.”

There is one final critical point to make here, at this time (May 19, 2020).

Institutions re-opening as part of “NY Forward,” may be required to monitor the health of their employees in a way that typically would seem intrusive, and in some contexts, would even be illegal.

For example, here is a sample of the monitoring required under NY Forward, taken from a sample safety plan.  NOTE: this is taken from the NYForward’s Phase One Retail Summary, and is provided as an example, only:

Employees who are sick should stay home or return home, if they become ill at work.

[Employers must] [i]mplement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors (but not customers), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.

Assessment responses must be reviewed every day and such review must be documented.

Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, employee may only return completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in past 14 days may only return to work after completing a 14-day quarantine.

As stated, this is the procedure for Phase 1 re-opening of limited retail operations.  When will libraries subject to closure in NY be able to re-open under NY Forward, and under what terms?  As I write this, the New York Library Association, NYLA, has this on their COVID-19 page, which states[1]:

With input from our partners from the Public Library System Directors Organization (PULISDO), NYLA has been advocating for libraries to be permissively included in phase two.  This would allow libraries to be a phased re-opening processed, to be determined at the local level, as early as when their region enters Phase Two.  The decision on when, as well as the steps and procedures for re-opening, are best determined locally, and in conjunction with the local library system and county Department of Health.

This is a critical service to association and public libraries by NYLA, and every board and director should be monitoring this site for updates.

Of course, some libraries may have determined that the current workforce restrictions don’t apply to them at all (that they are exempt right along with school districts and local governments).  And it is possible some libraries and museums, affiliated with larger institutions, will not be able to open until their region hits “Phase Four” (covering educational institutions).  And it may be that by the point libraries are given the go-ahead, the emergency has abated to the point where monitoring of employees won’t be required. 

But any library contemplating opening, in addition to being ready to consider ADA accommodations for those more vulnerable to COVID-19, needs to be considering these possible employee monitoring requirements, as well as the need to adopt any NY Forward-required Safety Plan, or similar documentation showing they are taking defined, affirmative steps to protect employee and public safety.

Public and association libraries developing the policies they need to re-open have a large, complex task before them.  Thank you for a question that explores a critical consideration of that work.



[1] Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies, Safety, ADA, HRL

Year

0

2016 4

2017 24

2018 29

2019 42

2020 76

Topics

501c3 2

Academic Libraries 2

Accessibility 5

ADA 9

Archives 1

Assignments 1

Association Libraries 2

Behavioral misconduct 1

Board of Trustees 5

Branding and Trademarks 1

Broadcasting 1

Budget 1

Cease and desist 1

Children in the Library 1

Circular 21 1

Contact tracing 1

CONTU 2

copyleft 1

Copyright 74

COVID-19 55

CPLR 4509 4

Crafting 1

Criminal Activity 1

Data 2

Defamation 1

Derivative Works 3

Digital Access 10

Digital Exhibits 1

Digitization and Copyright 12

Disclaimers 3

Discrimination 1

Dissertations and Theses 1

DMCA 2

Donations 3

DVDs 1

E-Books and Audiobooks 2

Ed Law 2-d 1

Education Law Section 225 1

Elections 2

Emergency Response 43

Employee Rights 9

Ethics 4

Executive Order 4

Fair Use 29

Fan Fiction 1

Fees and Fines 3

FERPA 6

First Amendment 1

First Sale Doctrine 3

FOIA/FOIL 1

Forgery and Fraud 1

Friends of the Library 2

Fundraising 1

Health Management 1

Hiring Practices 1

Historic Markers 1

HRL 1

Identity Theft 1

IRS 1

Labor 3

Laws 21

Liability 1

LibGuides 1

Library Buildings 1

Library Card Policy 2

Library Cards 2

Library Programming and Events 9

Library Purchases 1

Licensing 3

LLCs 1

Loaning programs 1

Local Organizations 1

Management 16

Meeting Room Policy 6

Memorandum of Understanding 1

Microfilm 1

Movies 6

Municipal Libraries 5

Music 12

Newspapers 3

Omeka 1

Online Programming 11

Open Meetings Law 2

Oral Histories 1

Overdrive 1

Ownership 1

Parodies 1

Personnel Records 2

Photocopies 15

Photographs 1

Policy 37

Preservation 2

Privacy 12

Property 3

PTO, Vacation, and Leave 1

Public Access 1

Public Domain 7

Public Health 2

Public Libraries 14

Public Officers Law 1

Public Records 2

Quarantine Leave 2

Records Management 1

Remote Learning 1

Reopening policies 8

Retention 5

Retirement 1

Ripping/burning 1

Safety 4

Salary 2

School Ballots 1

School Libraries 6

Section 108 2

Section 110 2

Section 1201 1

Security Breach 2

Sexual Harassment 2

SHIELD Act 2

Sick Leave 1

Smoking or Vaping 2

Social Media 4

SORA 1

Story time 3

Streaming 14

SUNY 1

Swank Movie Licensing 3

Taxes 4

Teachers Pay Teachers 1

Telehealth 1

Template 3

Textbooks 3

Umbrella Licensing 2

Universal design 1

VHS 4

Voting 1

W3W 1

WAI 1

Work From Home 1

Yearbooks 3

Zoom 2

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