RAQs: Recently Asked Questions

Topic: Update on retention of health screening records - 04/29/2021
I am writing to update the excellent advice on the RAQ page from November 2020 in regards to the r...
Posted: Thursday, April 29, 2021 Permalink

MEMBER QUESTION

I am writing to update the excellent advice on the RAQ page from November 2020 in regards to the retention of health screening records in a school district, local government, or state agency (under a separate retention schedule.)

I just called the state archives to confirm the retention period of library employee daily health screenings using LGS-1. They referred me to item 792c (positive health screening) with a 6 year retention and 792d (negative health screening) with a 1 year retention. (pg: 210-211 in the schedule.)

They have also updated their guidance on records related questions for COVID-19 
http://www.archives.nysed.gov/records/documenting-government-response-to-covid-19

Thank you for answering the original question in November. I hope this update to the response is helpful.

WNYLRC ATTORNEY'S RESPONSE

First: thank you very much for your kind words and feedback.  Both are very appreciated, and I encourage users of the service to keep a dialogue going--the service is only as good as the questions and input that inspire it.

Second, just to recap my advice from the November, 2020 "Ask the Lawyer" referenced by the member, it boiled down to:

"With no clear bucket and no clear requirements, at this point, I have to answer that retention of proof of screening should be permanent."

Time, as they say, has marched on, and as the member states, the State Archives has offered some additional guidance on this topic.

Here's where I am at: I have reviewed the additional information referenced by the member, and despite that input, I am just not confident that the time periods in LGS-792 "c" and "d" are the right fit for records showing a public library's routine use of employee screening as part of their Safety Plan,[1] and I continued to advise that retention be permanent (at least for now).

Here are the three reasons for my continued hesitation:

Reason 1: LGS-1 792a-f have a clear application, and I am not certain a pandemic response is quite it

I appreciate that 792c, which is part of the "Public Health" section of the LGS-1, applies to a "positive report" of a screening, and 792d is for a "negative report of individual screened."

However, as the remaining sections of 792 show, 792 applies to screenings conducted for public health initiatives that also (might) use: summary reports, master indices of "participants," informed consent forms, and a log used to compile data extracted from the screen.  

Logs, data crunching, and "informed consent" are all part of a public health agency's toolbox for public health initiatives in response to concerns such as the transmission and impact of a dangerous virus like COVID-19.

But unlike the majority of such initiatives, which tackle challenges such as STD's, tuberculosis, and cancer, employee health screenings for COVID-19 symptoms are part of a much larger effort conducted as part of an emergency response.

Reason 2: Emergency response records under the LGS-1

Because of the "emergency response" aspect discussed above, when I first reviewed the original question, I considered the applicability of LGS-1 802 ("public health incident files") which pertains to "records related to public health emergencies, communicable disease occurrences, and epidemics." 

Under 802 (also referenced in the State Archive's resource linked by the member), the retention period for "[s]urveillance, investigation, and response records" created in response to an epidemic is THREE YEARS "after [the] outbreak has abated."

Are a public library's employee health screenings "surveillance, investigation, and response records" during a "public health incident?"  Since employers are required to report the names of employees who screen positive to their local health department--who then engage in contract tracing and outreach--I believe they could be, which debatably makes the retention period of employee screenings (positive or negative) three years.

However, even three years doesn't sit right with me.  Here is why:

Reason 3: The other reasons to keep the records

My original answer went a little beyond the scope of required retention, addressing not only the precise retention period that might be required by the NY Arts & Cultural Affairs Law,[2]  but also, the other factors a public library might wish to consider when determining how long to retain the records of employee screenings.[3]

These "other factors" include legal claims based on alleged non-compliance with required pandemic procedures, some of which could underlie personal injury claims, alleged civil rights violations or even a contract violation (which has a six-year statute of limitations).[4]

In the body of New York case law involving personal injury, civil rights, and contract claims against public libraries, one can see an interesting pattern: sometimes public libraries are treated as government agencies, and sometimes, they are not.[5]  This is why public libraries are often required by their municipality to have their own insurance.  This also means that while they might be held to the document retention standards of municipal agencies, sometimes, they won't have the legal protections of one.

My concern was--and strongly remains--that a process of purging documents that could demonstrate use of and adherence to screening programs will only disadvantage a library, even if the lost record was properly disposed of under the LGS-1.[6]  There are reasons beyond required retention to keep those records.  And without a clear directive on retention, I think it is best that a library keep a close hold on them.

In closing

I am sure no public library that documents input from State Archives about the applicable retention period and then purges negative screens after 1 year will be met with a penalty from the State

But as you can see in "Reason 3," the State is not my primary concern. 

With the benefit of 5 additional months since my original answer, I will take advantage of this chance to refine it to revise my above-quoted statement and change it to:

"Even when we get clear requirements, I have to answer that retention of proof of screening should be permanent, or at least until your library's attorney has determined that any advantage to the library created by retention is past, and your library has determined they are of no historical significance."

Thank you very much to the member for giving me the opportunity to re-visit this issue and to offer this updated (and hopefully improved) guidance.  I am sorry to cause you more use of storage room, but gratified to have the chance to offer this analysis!

 

Afternote:  Below are the relevant excerpts from LGS-1 792 and 802:

792 CO2 508, MU1 472, MI1 409

Results of screening programs, except lead poisoning

a          Summary reports on screening results: RETENTION: PERMANENT

b          Master index or listing of participants: RETENTION: 50 years

c          Positive report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 6 years, or 3 years after    individual attains age 18, whichever is longer

d          Negative report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 1 year

e          Log or other working record of screening and testing, used to compile statistics and other      data: RETENTION: 1 year

f           Anonymous H.I.V. test results and related records: RETENTION: 7 years

NOTE: Identifiable H.I.V. related records are covered by item nos. 743 and 745, and related laboratory records are covered by items in the Laboratory subsection.

 

802

Public health incident files, including records related to public health emergencies, communicable disease occurrences, and epidemics

a          Surveillance, investigation, and response records: RETENTION: 3 years after outbreak          has abated

 

...

NOTE: Appraise these records for historical significance prior to disposition. Records of unusual disease occurrences or epidemics may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.

 



[1] This "Ask the Lawyer," like the original, avoids the issue of whether a non-association library has decided it must follow its local government's safety plans, or generate its own, and under which order or mandate that safety plan and the library operates.  The last footnote will show you why!

[2] The Law that empowers the Archives to develop the LGS-1.

[3] FOIL and various claims of civil liability being the top reasons.

[4] What I said was: "Most people know that when you leave a paper trail, it can (with many exceptions) be used for—or against—you in court.  In the employee data arena, common uses of such evidence are labor law and civil rights claims."

[5] For a good case illustrating this, see the chain of cases here: Gilliard v. New York Pub. Library Sys., 597 F. Supp. 1069, 1074-75 (S.D.N.Y. 1984)  New York Public Library v. PERB, 45 A.D.2d 271, 274, 357 N.Y.S.2d 522 (1st Dept. 1974), aff'd, 37 N.Y.2d 752, 337 N.E.2d 136, 374 N.Y.S.2d 625 (1975); Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982)); Breytman v. New York Pub. Library, No, 05 Civ. 10453 (RMB) (FM), 2007 U.S. Dist. LEXIS 12769, 2007 WL 541693, at *2 (S.D.N.Y. Feb. 21, 2007),  Breytman v. New York Pub. Library, Dyckman Branch, 296 F. App'x 156 (2d Cir. 2008)

[6] Unless your library hasn't had a safety plan and hasn't been performing screenings, in which case, talk with your lawyer and consider the best way to mitigate your risks!

Tags: COVID-19, Emergency Response, Personnel Records, Records Management, Record Retention

Topic: School library records retention - 01/21/2021
We got a question regarding how the new rules for records retention (the "LGS-1") impact...
Posted: Thursday, January 21, 2021 Permalink

MEMBER QUESTION

We got a question regarding how the new rules for records retention (the "LGS-1") impacts the retention of school library borrowing records.

Under the new LGS-1, how long must school library borrowing records be retained?  How does that impact BOCES, district, and school library records purging? 


 

WNYLRC ATTORNEY'S RESPONSE

Thank you for this question.  The LGS-1 is one of my favorite rabbit holes to explore.

I took a look at Schedule Item 596, which applies to "Borrowing or loaning records."  I have put a screenshot of the section, as it appears in the schedule as displayed on the NY State Archives web site: http://www.archives.nysed.gov/common/archives/files/lgs1.pdf

Screenshot of Schedule Item 596 on

As you can see in the screenshot, 596 fixes the retention period for borrowing or loaning records for school libraries as "0 years after no longer needed."

"No longer needed" is one of those phrases in the LGS-1 that renders the retention period variable.  This flexibility can be both helpful and frustrating, since a district, BOCES, or school library must determine, via policy, what "needed" means.

This can vary from place to place, but in all instances should be based on a determination of what is meant (for the district/BOCES/or school library) by "need," and then confirmed in a policy.

After that, best practice is always to purge records once their retention period is over, and for something as deeply connected to ethics, compliance and privacy as library records,[1] that is doubly true.  For school libraries, that retention period is zero, once the records are no longer needed.

Therefore: determining how long student library borrowing records are "needed" (something that may vary from library to library, district to district, BOCES to BOCES), and then purging the record as soon as possible,[2] is a good way to use the LGS-1 to enhance an institution's commitment to privacy.

 

Thanks to the member for bringing up this nuance.  These issues are at the crossroads of ethics, compliance and automation, and require continuous and careful attention to detail and resulting policy.

 

 



[1] Please see "Ask the Lawyer" here for a discussion of school library records, CPLR 4509, and FERPA.

[2] The LGS-1 encourages, but does not require, "the systematic disposal of unneeded records."

Tags: , Privacy, Records Management, Record Retention, School Libraries, LGS-1

Topic: NY's paid sick leave law - 11/05/2020
The state's new paid sick leave law recently went into effect on September 30th. According to ...
Posted: Thursday, November 5, 2020 Permalink

MEMBER QUESTION

The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:

"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."

As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law.  According to the state comptroller's table summary of local government entities [
https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".

However, in regards to page 33 of the State's Local Government handbook,

"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."

I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.

It's all a little confusing. Maybe you can help!

WNYLRC ATTORNEY'S RESPONSE

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not?  Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid.  So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply.  If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

 

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 [2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law."  And yes, it is subject to parts of the "Public Officers Law."  And yep—it may even have to disclose certain records under the Freedom of Information Law. 

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from.  Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

 

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees. 

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5],  c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"[6] otherwise barred by rules requiring mandatory overtime.  In short, under much of the Labor Law,[7] they are treated as municipal/district employees.[8]

 

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule.  But!  I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type

 

Hallmarks

Legal impact with regard to employees and labor law

What this means with regard to the new "Sick Leave" law ("196-b").

1. "Total Coupling" Type

The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.

 

Ideally, the relationship is confirmed in writing.

In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.

Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply. 

2. "Select support: determinative" Type

The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library  are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.

IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply. 

Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.

 

 

3. "Select support: non-determinative" Type

The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status.  For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance.  For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.

 

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

4. "Totally De-coupled" Type

The library has completely separated functions from any sponsoring entity.  The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.

 

No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.

In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

 

And there you have it.  From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way.  Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law.  If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is.  This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11]  Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to  Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question.  He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law.  Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question. 



[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of. 

[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."

[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee.  If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.

[4] Or school district.

[5] Worker's compensation, unemployment, paid family leave, etc.

[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime.  Only municipalities who are exempt from the Fair Labor Standards Act can do that.  For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/59.

[7] Except the Taylor Law.

[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.

[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave

[10] That said, this chart only considers the application of Labor Law 196-b.  If it tackled everything, it would be...very, very long.  For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.

[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.

[12] And another big thank-you for agreeing to be publicly thanked.

Tags: Employee Rights, , Public Libraries, Sick Leave, FOIA/FOIL, Health Management, Public Health, Records Management, PTO, Vacation, and Leave

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.