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