RAQs: Recently Asked Questions

Topic: Filling Out Forms for Patrons - 07/08/2021
We had a patron come in this past week who said that he couldn't see well and also couldn'...
Posted: Thursday, July 8, 2021 Permalink

MEMBER QUESTION

We had a patron come in this past week who said that he couldn't see well and also couldn't type or use a mouse, but he needed to certify Unemployment Insurance. He asked the staff member to login with his username and password and do this for him, and the staff member was, understandably, uncomfortable doing it.

I feel like patrons who divulge their personal data to us are doing it of their own accord and our privacy responsibility is to not share that information with others without the consent of the patron.

In this particular case, the patron was offering his information and consenting for us to enter it for him. As such, I don't think this violates any privacy agreement we have made as employees of the library.

The part that I worry about is, could this come back on an employee if they are doing a legal filing for a patron and the filing may be fraudulent? I am optimistic by nature and like to think people have good intentions, but the reality is, I know this happens. I wouldn't want to put an employee in a sticky legal position if they filed what might turn out to be a fraudulent claim for someone.

Do you know of similar situations in other libraries and what, if any, legal ramifications there might be for employees who could be caught in the middle of something like this?

WNYLRC ATTORNEY'S RESPONSE

At first glance, this question seems simple: what are the possible legal risks to a librarian helping a patron fill out a legal document?

But within this question lies another, slightly more complex issue: when does good customer service become an accommodation for a disability?

This "slightly more complex" consideration is brought up by this part of the member's scenario:  "We had a patron come in this past week who said that he couldn't see well...", potentially meaning: the patron could not access the library services (use of the computer and internet) without assistance, because of a disability.

Of course, not every visual limit is a bona fide disability (I have to take off my glasses to read these days, but that does not entitle me, by law, to an accommodation under the ADA).  However, a patron requesting help to access a library service due to "low vision" (meaning that patron cannot view the screen even with corrective lenses), is potentially requesting an accommodation.

This is because "low vision" can be "a physical or mental impairment that substantially limits one or more major life activities," (which is the ADA's definition of a disability).

For patrons with "low vision," an ADA accommodation can take many forms aside from a human-powered solution, including:

  • Ensuring computers have increased operating system font size with large-size computer monitors
  • Screen magnification software
  • Locator dots and/or large print keyboard labels for keyboard navigation
  • External computer screen magnifier[1]

What accommodations a library chooses to offer to someone needing an accommodation to access library services will vary based on that library's size, type, served population, and (of course) budget. [2]  For some libraries, the "human solution" will be the only one available...which creates dilemmas like the one shown in the member's question.

Okay, let's press "pause" on the ADA aspect (we'll come back to it) and return to the original, simple question: what are the possible legal risks of a librarian helping a patron fill out a legal document?

The risks, of course, are that if the patron is accused of fraud, identity theft, or any other illegal activity based on the form's contents, it could lead to complications for the library (and thus, potentially, the employee).

Of course, most types of crimes based on fraud, false personation, and identity theft turn on the awareness and intent of the involved parties. Basically--and this is a big paraphrase--so long as a person can show they had no awareness or intent to help with a crime, they will have a defense against such an accusation...especially if they are performing the action as part of a duty in their job description.

But how can a library avoid such accusations against its employees in the first place?  This is where we take the ADA aspect off "pause," and consider how a library's policies can set firm boundaries for good customer service, while also facilitating accommodations for disability.

How is that done? Many libraries already have a version of this approach, but here's my plain-language version of a policy:

Library employees are here to help patrons use library resources, but librarians and library staff may not interpret, provide guidance, or fill in forms for patrons.

Patrons who need assistance filling in a form or completing a document due to uncertainty about the content are welcome to ask librarians for help locating the instructions or contact information for assistance.

Patrons who need assistance filling in a form or completing a document on the library's computer or other resource as an accommodation for a disability, please alert the Director or [insert alternate, accessible means], so the Library may act on the request per the library's ADA policy.

So, to be clear, my answer to the member's overall question is: to avoid doubt, librarians should never help patrons fill out the answers on legal forms if the help is just part of good customer service.[3]   HOWEVER, librarians absolutely can read the content and type substantive answers on a patron's legal forms if the library decides (and documents) that it is providing the assistance as part of a reasonable accommodation for a disability.

When considering employee-powered assistance as a form of accommodation, part of evaluating the request must be consideration of how it can be fulfilled ethically.  For instance, a person providing an ADA accommodation as an ASL Interpreter must follow the Registry of Interpreters' Code of Ethics[4] (or other professional association).  A person providing an ADA accommodation as a "reader" for a person who is blind or has low vision should not offer guidance or commentary on the content--their role is limited to reading, and perhaps typing, based on verbal prompts from the accommodated party.[5]  A person typing because the library's only keyboard is inaccessible to the patron and the library has no dictation software should similarly only type as an accommodation, and not offer comment or guidance. [6]

Some libraries, looking at the range and requirements for certain types of human-powered accommodations, may decide they do not have the staff capacity to provide such resources.  Others will say (and support by well-developed policy): sure, we can do that, here's how.[7]

The important thing, no matter what the decision is, is to keep a record as to why a library employee (or contractor) would assist a patron with filling out and/or submitting a confidential or legal document.  Since the only reason should be as an accommodation, that reason should be documented in either the policy (for instance, if the library has a standard service) or as an ad hoc request.

Thank you for a very compassionate and thoughtful question.



[1] Many thanks as always to the "AskJAN.org" web site, which lists common disabilities and their accommodations, including the definition and accommodations for "low vision," found here as of June 28,2021: https://askjan.org/disabilities/Low-Vision.cfm.

[2] "Ask the Lawyer" has addressed the various types of libraries’ obligations under the ADA in other answers, such as https://www.wnylrc.org/ask-the-lawyer/raqs/65 and https://www.wnylrc.org/ask-the-lawyer/raqs/142.

[3] Assistance printing, formatting, duplicating, locating a hyperlink, and in general using library technology in furtherance of completing the form is okay.

[4] Found at https://rid.org/ethics/code-of-professional-conduct/.  Are there any libraries with in-house ASL interpreters?  That would be cool.

[5] The National Foundation for the Blind has a helpful article on this here: https://nfb.org//sites/default/files/images/nfb/publications/fr/fr35/1/fr350105.htm.

[6] This is why consideration of ADA access is so critical in procurement of library resources.   As you will see on most ADA-resource sites (like AskJAN.org), most accommodations these days are powered by technology.  Although some still rely on human action (for instance, reading aloud), most do not.  A library that factors these needs into procurement decisions (buying larger screens, or adaptable keyboards) will not only model a practical commitment to ensuring access, but will reduce the need for employees to be the mode of accommodation--lowering the risk of viewing and contributing to the completion and submission of confidential/legal documents.

[7] An example of the types of accommodations offered on the "larger budget" end of things can be seen at NYPL: https://www.nypl.org/accessibility.

 

Tags: Accessibility, ADA, Privacy, Accomodations, Patron Confidentiality, Service Desk Issues

Topic: Gender neutral restroom signs - 05/07/2021
Some of my member libraries have questions about the new Gender Neutral Bathroom Legislation:...
Posted: Friday, May 7, 2021 Permalink

MEMBER QUESTION

Some of my member libraries have questions about the new Gender Neutral Bathroom Legislation:
 

1) Type of signage required to be placed on or near the bathroom door. That is, does the sign have to specify "gender neutral", or, is "bathroom" ok.  Also, can one use a sign that uses symbols (male, female, ADA) rather than sex?


2) Is a library required to have at least one designated male and one designated female bathroom in the building in addition to a gender neutral one? One of my libraries was with 3 bathrooms was told that was the case.


3) Is there a height requirement for braille signs so that individuals who use wheelchairs can reach it?

[This is the part of the legislation that is generating questions: "Such gender neutral bathroom facilities shall be clearly designated by the posting of such on or near the entry door of each facility."]


It will be good to have clarification/interpretation; it sounds like it has to be clearly stated as gender neutral, which likely can be done with signs with the symbols, but you never know.

Thank you in advance for providing clarification on this legislation.


 

WNYLRC ATTORNEY'S RESPONSE

Above all, "Ask the Lawyer" strives to provide useful, plain-language legal information and analysis for the members of New York's regional library councils.

So before I delve into the background, legal analysis, and compliance tips I would like to offer in response to these questions, here are some useful, plain-language answers:

  • The posted signage must specify that the single-occupancy bathroom is "gender neutral;"
  • Symbols are allowed only if they effectively convey that the bathroom is "gender neutral";
  • Amounts and ratios of toilet facilities depend on the type and size of the library;
  • Yes, there is a defined standard-height requirement for Braille signs designating a public bathroom.

And with that said...let's delve.

Background

First, let's check in with the legislation[1] the member references, which was signed into law in December 2020, and went into effect in March 2021.

Called "AN ACT to amend the civil rights law and the education law, in relation to single-occupancy bathroom facilities," this legislation affects not only bathrooms in public spaces (like bars, restaurants, etc.), but also bathrooms in SUNY, CUNY, and all community colleges.[2]

While the title and the text of the new laws may sound a tad dry, the "legislative memo" that accompanied it left no room for doubt as to the law-makers' aspirations:

Access to public spaces should not be a privilege. A person's sexual orientation and gender identity are not justifications to exclude individuals from public spaces, including bathrooms. The argument that transgender individuals must use the restroom that corresponds with their assigned gender at birth is discriminatory and wrong. New York State has been a safe haven for people from all backgrounds and beliefs, and we must recognize our role as a leader in the fight for transgender rights. Expanding the civil liberties of transgender individuals is a task New York must take up with pride. We must acknowledge that this issue is not about bathrooms, but is instead about fighting for a person's right to exist in the world free from harassment and discrimination. The California legislature recently passed the most progressive bill on bathroom access in the nation. Now is an opportunity for New York to join California in its efforts to protect transgender individuals and expand inclusivity and dignity for all.  Modeled after

California's bill, this act would require all publicly accessible bathrooms, including those in public and private schools, restaurants, bars, mercantile establishments, factories or state-owned or operated buildings, to designate all single occupancy bathrooms as gender neutral.

The memo makes it crystal clear: the intent of the act is to protect civil rights.

This background is important to consider, because as we analyze how to comply with the new laws, the lawmakers' intent--sometimes called the "spirit" of the law--is relevant. 

 Legal Analysis

Any institution that must comply with the Americans with Disabilities Act ("ADA")[3] should use the United States Department of Justice (USDOJ)'s standards for accessible design, including when creating the now-required postings to designate gender-neutral[4]  bathrooms.

The USDOJ's ADA standards are silent about gender-neutral space.  However, they do set parameters for signage, including, as the member writes, use and placement of Braille and signs with "tactile" (can be discerned through touch) elements.

Among what is required (sorry if this language is opaque, I don't write the guidance, I just quote it):

Tactile text descriptors are required for pictograms that are provided to label or identify a permanent room or space. Pictograms that provide information about a room or space, such as "no smoking," occupant logos, and the International Symbol of Accessibility, are not required to have text descriptors.

And

703.4.2 Location. Where a tactile sign is provided at a door, the sign shall be located alongside the door at the latch side. Where a tactile sign is provided at double doors with one active leaf, the sign shall be located on the inactive leaf. Where a tactile sign is provided at double doors with two active leafs, the sign shall be located to the right of the right hand door. Where there is no wall space at the latch side of a single door or at the right side of double doors, signs shall be located on the nearest adjacent wall. Signs containing tactile characters shall be located so that a clear floor space of 18 inches (455 mm) minimum by 18 inches (455 mm) minimum, centered on the tactile characters, is provided beyond the arc of any door swing between the closed position and 45 degree open position.

And

703.4.1 Height Above Finish Floor or Ground. Tactile characters on signs shall be located 48 inches (1220 mm) minimum above the finish floor or ground surface, measured from the baseline of the lowest tactile character and 60 inches (1525 mm) maximum above the finish floor or ground surface, measured from the baseline of the highest tactile character.

Meanwhile, in the State of New York, the State Building Code Section E 107.3 reinforces these signage requirements.

What does all this mean?  Ideally, the posted signage designating a gender-neutral, single-occupancy or family assist restroom should have either a pictogram with a tactile element on it, or Braille text descriptors describing the room, and with regard to placement, that sign's center should be no less than four feet and no more than five feet above the floor.

Now, let's talk about symbols (as opposed to words).

What if your library wants to use a symbol (or "pictogram") instead of the phrase "gender-neutral"?  This is a tough one.  If you still have those USDOJ ADA standards open, take a look at how they refer to use of symbols.

First, you'll see that there is a "universal" symbol, set by the International Organization for Standardization (the "ISO"[5]) for designating a bathroom that meets the standards for wheelchair access:[6]

Image of ISO symbol for bathroom designating wheelchair access

Use of this "universal" symbol is described in both the USDOJ ADA guidelines, and the NY State Building Code.

Next, you'll see that the ISO does have a symbol they have developed to designate that a bathroom is "unisex":

Image of ISO symbol for bathroom that is unisex

Now, this is just me saying this, so take it with a grain of "persnickety lawyer" salt, but "unisex" is not the same as "gender neutral."  Further, a symbol combining the binary designations for "female" and "male" is not quite consistent with an initiative seeking to respect the innate dignity of people who might not identify with either category.[7]

So, until the ISO develops a symbol for "gender-neutral" that doesn't rely on a binary construct of gender, I advise considering not using a symbol at all (for the "gender-neutral") part.  Give the ISO time to craft a more appropriate pictogram.

That said, if you are a library lucky enough to have a bidet in your single-occupancy, gender-neutral, family-assist bathroom, the ISO might still have an option for the "bidet" part:[8]

Image of ISO symbol for bathroom with bidet

--Just make sure that as required, the pictogram has a tactile element.

Compliance tips

With the legislative record clearly establishing that this change to the law is about civil rights, and with libraries eager to emphasize their missions of access and inclusivity, the signage for a library's gender-neutral bathroom is a good one to demonstrably get right.

However, as you can see from the "Legal Analysis" above, "getting it right" can be complex. 

As just a final example of that complexity (and to delve a bit more into one of the member's questions) here is a section of the New York State Building Code's Section 2902, on the prescribed ratio of plumbing facilities for libraries (including total amount of lavatories, amount for men, and amount for women[9]):

        Screenshot showing NY Building Code Section 2902

What is the take-away from this chart?  If your library is struggling with how to designate, plan, or build the right number and/or type of bathrooms, don't be surprised: this stuff is not simple, and it takes consideration of old/new construction, your status as a tenant or building owner, local law, and a host of other factors.  Which is why (in addition to your lawyer), a local architect, or a planner with experience on civic and public assembly spaces, is a good person to reach out to. 

Architects and planners are the people who live and breathe place-making and ordinal signage.  By design, these are professions that think about how people organize buildings, and how people can feel welcome in spaces.  An architect or planner with experience in your area will know exactly how to not only designate the space, but to order the signage, and assess the required number of facilities.  Since there is no "one size fits all" answer to some of these issues, a library needs to consider a custom fit.

If you aren't sure where to start on a quest for an architect or planner, a call to your local "Permits" officer might yield a name or two, and if there is a local college, their librarian might be able to connect you to the "head of planning." 

Conclusion

I have included a lot of analysis in this answer, because in my experience an audience of information management professionals can handle it.

That said, after all the above analysis and commentary, the answers regarding a gender-neutral, single occupancy/family assist bathroom are simple:

  • The posted signage must expressly specify that the single-occupancy bathroom is "gender neutral;"
  • Symbols are allowed if they convey that the bathroom is gender neutral, but (my thoughts) the "official" symbols out there aren't 100% on point, so proceed with caution;
  • Whether or not a library is required to have at least one designated male and one designated female bathroom in their building depends on the type and size of the library; consult a planner or licensed architect in your area if you are unsure;
  • If you order ADA-compliant signage with Braille or a tactile element, affix the center of the sign between four and five feet from the floor, taking care to select a space that meets the USDOJ's requirements.

 

Thank you so much for a thoughtful array of questions, I was very grateful to be able to spend some time delving into this topic.

 



[1] On the NY Assembly site here.

[2] If you're thinking "Hey, they left out public schools!", the law impacting those was passed earlier.

[3] See https://www.wnylrc.org/ask-the-lawyer/raqs/65 for comments on when a library, museum or other institution must comply with the ADA.

[4] Confession:  it is driving me CRAZY that this legislation did not include a hyphen between "gender" and "neutral."  I refuse to continue the mistake and will use a hyphen unless I am directly quoting the law; to do otherwise would be to be "grammar-neutral" (not to be mistaken for a "grammar neutral" which is someone who mediates grammar disputes).

[5] An organization that is "famous" in the same way the G8 or the IMF is "famous": generally known, and pervasively powerful...but not many people can succinctly define what you do on a daily basis.

[6] Find more guidance on standards for using this symbol at ISO here: https://www.iso.org/obp/ui/#iso:grs:7001:PI_PF_006; the general search tool for international symbols is: https://www.iso.org/obp/ui/#home

[7] Get it together, ISO!

[8] Seriously, I am not kidding.  It's right here.

[9] Section 2902 also states that any single-occupancy bathroom may be deducted proportionately from gender ratios.  It's almost like they knew what was coming!

Tags: Accessibility, Laws, Library Buildings, Building Codes, Gender Neutral Signage, Signage

Topic: Considering accessibility in library statements and purchases - 11/04/2020
Should our library have an accessibility statement?  And should we consider accessibility whe...
Posted: Wednesday, November 4, 2020 Permalink

MEMBER QUESTION

Should our library have an accessibility statement?  And should we consider accessibility when making purchases?

WNYLRC ATTORNEY'S RESPONSE

Yes, and yes.

Every library, historical society, archives, or museum, if open to the public, should have accessibility information posted at its premises, in its printed brochures and fliers, and on its website.

While it can (and often should, based on the size and type of the library), this "accessibility statement" does not have to cite the ADA.[1]  Rather, it can just be a simple statement about your institution's commitment to access, along with some basic information about what common accommodations are on site—and critically, how to get in touch if a person needs more.

Here is some sample language:

The ABC Library is committed to access for all.  We currently [insert all current accessibility features, including ramps, bathrooms, parking, adaptive technology, etc.].  As renovations are planned and new items are purchased, our accessibility grows.

Questions about our resources and any accommodations can be directed to [PERSON] at [PHONE] or [EMAIL].  To ensure timely and thorough assessment of accommodation requests, we will confirm the details of the request with you, assess the request, and let you know the options we can offer as soon as possible.

Requests related to specific events should ideally be received at least two weeks before the event, to allow time for proper assessment and planning.

Some requests might not be within the scope of what we can do, or may be met through alternatives, but the ABC Library board of trustees, director, and employees are committed to making our library the best it can be for everyone in our community.

Further, every library should have an accessibility/universal design section in its purchasing/procurement policy.

Just something simple, like:

When generating Request for Proposals and soliciting quotes, the ABC Library will assess the goods and/or services to be purchased and develop criteria to: 1) assure ADA compliance; 2) incorporate consideration of universal design; and 3) position the library to promote accessibility based on established, current, and properly sourced research.

Why is this important?  Well, aside from being a kind, considerate thing to do[2], it is a form of legal risk management for facilities required to follow the ADA. 

Pre-emptive outreach on accessibility helps people plan visits and find ways to access services, rather than look to the law for alternatives.  And by building accessibility priorities into the earliest phases of procurement, your institution makes sure it thinks about accessibility before a purchase becomes a problem.

Once a library resolves to do these two things, there are endless resources out there on how to write policy, compose statements, and how to consider the ADA when making purchases, designing signage, and updating websites.  But resolving to make these things a priority is the first step.  So...

Should your library have an accessibility statement?  And should your library consider accessibility when making purchases?

Yes, and yes.



[1] A longer "Ask the Lawyer" answer regarding precise ADA obligations is https://www.wnylrc.org/ask-the-lawyer/raqs/153. This is just a sweet and simple guide to some basic concerns.

[2] Even an institution with a 200-year-old building with no elevator on a street with no parking can be welcoming if the right signage and alternate means of accessing services have been communicated and properly arranged beforehand.

Tags: Accessibility, ADA, Policy, Library Purchases, Universal design

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, Masks, Public Health, Safety Plan

Topic: Oral history transcriptions and the ADA - 5/19/2020
When publishing Oral Histories to a Digital Exhibit, such as Omeka, are we required by A...
Posted: Tuesday, May 19, 2020 Permalink

MEMBER QUESTION

When publishing Oral Histories to a Digital Exhibit, such as Omeka, are we required by ADA to include a full transcription of the interview in the metadata? Is a Time Summary sufficient?

WNYLRC ATTORNEY'S RESPONSE

Ugh.

Not only is the answer to this “maybe,” but I am afraid the answer is actually “maybe maybe.”  And it might even have to be “Maybe maybe maybe, maybe.”  But hang in there, because I think I can still give you some solid information in reply! (Maybe.)

Oral history projects—exhibits and collections using audio and video recordings to tell a story in participants’ own words--provide invaluable access into the culture and experience of particular people, at a particular place, during a particular time.  Using direct representation, with only the mediation of the recording, they can show emotion, capture dialect, and put a subject in control of their own story.[1]

Hosting such stories online is a great way to bring unique perspectives and individual experiences to a broad audience who might not be able to access a physical museum.  But as the member’s question points out, not everyone has equal access to audio or audio-visual online content.  So what are the precise ADA obligations pertaining to an oral history exhibit’s audio components?

As the word “maybe” implies, there is no bright-line answer.

Libraries, museums and archives collecting and curating oral histories all have different obligations under the Americans with Disabilities Act.  Some institutions will fall under the obligations governing government entities. Others will fall under the law and regulations governing places of public accommodation. Still others will have accessibility considerations arising from acceptance of federal grant money, or operation as an educational institution or health facility.

And finally, some institutions may develop an oral history exhibit along with a community partner, splitting duties regarding collection of stories, arrangement of information, construction of the on-line exhibit’s functionality and web presence, and ongoing hosting.  And any one of those split or shared duties, regarding audio, could have implications for access under the ADA.

But while there is no bright-line answer, there is some great guidance out there on this topic, and if that guidance is followed as closely as possible, it will not only reduce the risk of an ADA violation, but perhaps also enhance an oral history exhibit.

To design an oral history project that will have a high likelihood of complying with the ADA, the project developers have to be thinking about access from the start.  This means, before the project budget is fully allocated, before the contracts are awarded, before the online platform for a project is selected, or before any contributor terms are settled, access for those with a disability has to be considered up-front.

Fortunately, pre-planning and clear methodology are the hallmarks of all serious oral history projects.  This is due to the great professionalism of those who are committed to this medium, who have developed an array of ethics, legal considerations, and guidelines for such projects.

Any member considering an oral history project should check out the excellent guidance at https://www.oralhistory.org/?s=ethical+guidelines (the statement of ethics developed by the Oral History Association) as well as their institution’s own ethics policies and guidelines.  Any agreement with a collaborator or contributor should also reference the ethics/access criteria for both parties, as well as for a particular project.

For compliance with the ADA, what are those guidelines?  There are any number of them, but I’ll go with what I consider the Gold Standard: The US Department of Justice, which investigates alleged violations of the ADA, guides web developers to the World Wide Web Consortium’s (“W3W”) Web Accessibility Initiative (WAI), which sets forth clearly developed standards for web content accessibility.

What does WAI say about the issue of audio content?  A lot.  Further, what the WAI has to say is so well-developed and nuanced—addressing just about every permutation you can think of (speaker reading from script, spontaneous speech with one person, spontaneous conversation, both audio-only, and audio-visual)—that the best thing I can do is send you to their guidelines:

https://www.w3.org/WAI/WCAG21/Understanding/audio-only-and-video-only-prerecorded

As you’ll see in the “Standards,” just as the member suggests, sometimes a textual timeline might be sufficient.  Other times, a transcript of the complete audio content should be available.  And while this information can be part of the metadata, the manner in which the exhibit interacts with the user’s browser will be just as critical (for oral history exhibit developers who are actually developing the front end of an exhibit, here is what the USDOJ looks for : https://www.justice.gov/crt/web-page-accessibility-checklist1).

To use the member’s specific example, there may be times when simply a timeline of the information is sufficient.  If, however, the way the person is describing the events, or the particular language or dialect they are using is part of the value of the exhibit, the content should be fully transcribed.  The standards used to make that call should be part of the design of the project.  For contributors sending an exhibit in to larger work, the host should be the one to set the criteria. 

Now: I appreciate that not every oral history project, or every institution undertaking one, will have the budget or professional support to create W3W-informed access content.  And while transcription gets easier and faster every day, not every project will have the capacity or need to use that, either.

Some oral history projects are very small.  Some projects involve simply wanting to record different experiences of the people in a town, enjoying their Public Library, and put them on the library website.[2] For those projects, the more modest resources and needs of the Town will govern the ADA obligations (unless there are strict conditions under grant money).  But for larger projects connected to institutions that can be seen as having an obligation to provide such transcripts as part of a large oral project, particularly if public funding is involved, it is best to design the project to conform to agreed upon ethics, and W3W’s standards for Accessibility.

Again, this requires consideration at the front end of the project, and needs to be built into the budget and the procurement.  It also needs to be built into any agreements for outside contributors (which the question hints at). 

As the W3W guidelines point out, this will not only ensure the accessibility of your project, but will help people and institutions who do not speak the language of the person in the audio or audiovisual content to use your oral history project in their own research. The fact that this will also give you a better project is an incidental benefit of designing for inclusion!

Thanks for a great question.



[1] Through the magic of editing selective footage, an oral history project can also directly subvert these goals, but let’s assume anyone reading this is using their powers for good.

[2] Some would debate if this would be called an “oral history” project.  Out in the field, I have encountered many uses of that term, and some of them are very informal, or minimally funded, so I am including that as an example.

Tags: Accessibility, ADA, Digital Exhibits, Omeka, Oral Histories, W3W, WAI

Topic: ASL Interpreting Services and Legal Recourse for Service Cancellation - 6/19/2019
Greetings. We have used an ASL Interpreting service a few times over the past few months...
Posted: Wednesday, June 19, 2019 Permalink

MEMBER QUESTION

Greetings. We have used an ASL Interpreting service a few times over the past few months and have had a situation occur twice where the patron cancelled their visit with our library 2 hours before the appointed time. The service we are using requires a 48 hour cancellation notice or else we get invoiced for full service. Is it legal to forward that charge on to the patron as they are the party who cancelled the service? If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

WNYLRC ATTORNEY'S RESPONSE

This question has two parts, so I will re-state them for clarity:

Is it legal to forward that charge on to the patron as they are the party who cancelled the service?

Answer: no.

If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

Answer: yes.

For more on both of these, see below!

This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019. 

“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.

[We’ll pause while you read “Screening Movies” and absorb the basics.]

Okay, have you got the fundamentals of ASL-related ADA compliance?  Great!  Now we’ll move to the advanced work required by these questions.

The answer to the member’s first question is “No,” because, per federal regulations[1]:

 (c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….

While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:

One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.

In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot. 

There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.

1.  Renegotiate your interpreter contract to shift away from cancellation fees

This of course requires cooperation by your ASL agency, but it is feasible. 

One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what. 

This gives both your library, and the provider, some fiscal stability as you serve the needs of your community.  It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.

2.  Renegotiate your contract to tighten the cancellation window and reduce the fee

24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!

Again, this requires cooperation by our agency, and in you location, it might be a seller’s market.[2]  But it doesn’t hurt to negotiate![3]

3.   Know your budget

As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution.  What might be “reasonable” to a large urban library might be an “undue burden” [4] for a small village library with a much smaller budget.  But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.

When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services.  It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.

For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital. 

The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required.  And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.

 



[1] 28 C.F.R. § 36.301 “Eligibility criteria.”

 

[2] A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.

 

[3] I don’t mean to imply that this member didn’t negotiate.  In my experience, librarians are often tough and forward-thinking hagglers.

[4] Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –

  • (1) The nature and cost of the action needed under this part;
  • (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
  • (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
  • (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
  • (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Tags: Accessibility, Laws, ADA

Topic: ADA Compliance When Screening Movies - 1/7/2019
This question has 2 parts:  1. Public Libraries often show movies/films under the auspices...
Posted: Monday, January 7, 2019 Permalink

MEMBER QUESTION

This question has 2 parts: 

1. Public Libraries often show movies/films under the auspices of a public viewing license. A question arose regarding ADA compliance: Does the film have to be shown with closed captioning? What if closed captioning is not an option.

2. When a program is given in a public library does a deaf interpreter have to be provided for every public program? OR is there a time-frame of notification - that is to say, if the library is notified an individual expecting to attend a program requires a deaf interpreter, one must be provide. What is considered an acceptable time-frame of notification? Should this be posted - if so where is it required: Website? 

Thank you for your assistance in this matter.

WNYLRC ATTORNEY'S RESPONSE

This is an important submission, because access is the mission of every library, and access is the purpose of the ADA.  When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.  

Under that principle, the answers to the member’s questions are:

  • When showing a movie, always use some type of assistive technology to ensure accessibility.
  • When having a large-scale event, always budget and plan for an ASL interpreter.
  • To ensure people can advise the library of the need for specific accommodations, have a well-developed and publicized accessibility policy.

By planning for access, an institution can never go wrong under the ADA.

But the member wants to know: when planning for access, what does the law specifically require?

As always, what the law requires can depend on a lot of different factors.

The ADA and its enabling regulations do expressly require certain entities to use captioning technology.  For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech. 

But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters.  Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”  

In other words, while captioning is not expressly required at a library, accommodations are.

The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie.   What’s important is not the precise accommodation, but the removal of a barrier to service.  

That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access. 

How can a library easily assess all those options?   A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org.[1]  Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget. 

For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services.  To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.

Which brings us to the heart of the member’s question: what are a library’s specific obligations?  At the start of this answer, I have used the lawyer’s go-to response: “it depends.”  But what does it depend on?

Precise obligations under the ADA vary based on institution type, size and budget.  For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure.  This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.[2]

On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.

But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult[3]). 

This is why every library should have a custom-tailored[4] accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations).  While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all. 

For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event.  Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully. 

A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:

  • the library is not making ADA decisions ad hoc (a recipe for a law suit);
  • that its documentation shows compliance if a violation is claimed;
  • that ADA accessibility is built into budgeting, staffing, training, purchasing, and event planning;
  • that the institution is placing the needs of all patrons at the forefront of planning.

If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members[5], and an attorney, should be a top priority.

How can that play out?  Let’s return to the member’s scenarios. 

With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way.  The library would check the latest alternate assistive technology in the early planning stages of the event.  Consulting AskJAN, they might determine that perhaps remote CART[6] technology can help, and their planned budget line would pay for it.  If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.

If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages.   But more critically, the details of the event will reduce the risk of such a complaint,  since any person who needed accommodation had access that was both well-planned and easy to arrange. 

Thank you for these important questions.

 


[1] https://askjan.org/a-to-z.cfm

[2] An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm.

[3] This legal language “undue burden,” causes some of the most painful moments under the ADA.  When a small, budget-challenged institution is forced to call a necessary accommodation a “burden,” no one feels good.  Sometimes the law picks the wrong work; I would have gone with “unduly disproportionate.”

[4] Although seeking inspiration from similar institutions can be a great place to start, an ADA policy is not a document to cut-and paste from another institution. 

[5] Page 62 of the 2018 “Library Trustees Handbook,” is a great resource for a library directors who need to give trustees an summary of the magnitude and importance of this issue.

[6] Communication Access Real-time Translation.

Tags: Accessibility, Laws, ADA

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.