MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a VERY sensitive issue. There are many factors that could contribute to a person sleeping in a public space, including:

• An undiagnosed medical condition
• A diagnosed medical condition
• Non-medical factors impacting behaviors
• Temporary or serial lack of a safe, stable place to rest
• Simply wanting to take a nap[1]
• Any combination of the above-listed factors

Each one of these brings their own array of legal (and ethical, and moral) considerations.

But before we get into all that, let's discuss: for purposes of this question, what is "sleep"?

For purposes of this question, let's call "sleep" a "state of healthy, restful, and restorative unconsciousness."  In other words, "sleep" is that great thing we all do when our eyes get heavy, we yawn, and lie down, dozing into blissful unawareness.

Sleep: we all do it, and many of us love it.[2]

Now, let's talk about what sleep isn't for purpose of this question.  "Sleep" isn't, for purposes of this question; the result  of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar.   And yet, to the untrained eye, any one of these dangerous conditions could be mistaken for "sleep."[3]

Because of this, no matter how much my bleeding heart and sense compassion want to say, "Just let the person sleep in the library, and don't say anything," I can't.  I just can't bring myself to normalize ignoring what could be "sleep" one day, and a diabetic coma the next.[4]

That said, because it could be related to a real or perceived medical condition and/or disability, denying or restricting library services (including the right to simply be present in the library) on the basis of simply falling asleep could pose risks of disability discrimination.  Sleep happens, folks, and sometimes people can't help it.

So, what is the solution, here?

Well, as with many things, there is no one "right" answer.  But I will say:

1.  Every library should have a policy, or at least a "standard operating procedure" (or "SOP"), regarding "Suspected or Actual Medical Events in The Library."   That policy should address (among other things) what to do about perceived loss of consciousness or coherence by library users.[5]

2.  A" Suspected or Actual Medical Events in the Library" policy or SOP can also address incidental (meaning unintended) and deliberate use of the library for napping.
3.  This is where a library's discretion and autonomy kick in.

A library can decide if it is going to normalize sleeping in the library, or not.

If a library decides NOT to normalize sleep in the library, a simple statement such as "For assurance of safety, the library is a no-nap, no-sleep zone.  Thank you for helping us maintain this rule.  We understand that sleep happens; if you need to request ADA accommodations due to this rule, please contact NAME at INFO."   Then, as a rule, patrons who fall asleep should be awoken (just as patrons who bring food in might be asked to remove it, or patrons who don't wear shoes might be asked to put some on).

On the flip side, if a library decides, as a matter of policy, to allow users to sleep in the library[6], such a policy can also create the protocol for "safe napping," with those planning to sleep notifying staff, so the nap is not mistaken for an overdose, seizure, etc.

NOTE: Before selecting this option, a library should check with its general liability insurance carrier to make sure it is consistent with the library's risk threshold and coverage.

What does a "Suspected or Actual Medical Events in the Library" with a "sleeping" section look like?  Here is an example (with both a "sleep okay" and "no sleep" option at the end):

The XYZ Community Library is a welcoming, service-oriented, and inclusive space for all. To promote the health and safety of those using our library, the following possible medical events will result in the staff calling 911:

• Any perceived or actual loss of sustained coherence or consciousness;
• Any library user exhibiting signs that they may require emergency medical attention,

who does not expressly instruct staff that immediate medical attention is not required;

• Any person requesting emergency medical response.

Definitions

For this policy, "loss of sustained coherence or consciousness" is the inability to communicate meaningfully with library employees in the user's primary language.

For this policy, express instructions to staff that "immediate medical attention is not required" may be disregarded at the considered discretion of the library employees; such a decision will be based on consideration of: the specific facts of the situation, respect for the agency of the user, and respect for the mission and operational needs of the library.

ADA

If a library user has a medical condition that can potentially result in perceived or actual loss of coherence or consciousness, you may use the library's ADA Accommodations policy to arrange reasonable accommodations so your library experience is not unnecessarily impacted by this policy. For example, if a library user has narcolepsy and wishes to be woken in the event, they fall asleep, the library can consider a reasonable accommodation such as allowing the user to use a specific type of alarm in an otherwise quiet space.

Specific Situations

Whenever possible, the library uses the following specific guidelines from the CDC with respect to common medical events that can impact coherence or consciousness:

Seizures

Seizures do not usually require emergency medical attention. Only call 911 if one or more of these are true:

• The person has never had a seizure before;
• The person has difficulty breathing or waking after the seizure;
• The seizure lasts longer than 5 minutes;
• The person has another seizure soon after the first one;
• The person is hurt during the seizure;
• The seizure happens in water;
• The person has a health condition like diabetes, heart disease, or is pregnant.

Suspected opioid overdose
Call 911 if an overdose is suspected.

Recognizing an opioid overdose may be difficult. If it is unclear, treat the situation like an overdose and proceed with treatment. Even if the patient wakes up or seems better after one or two doses of naloxone, emergency medical assistance is still necessary.

Severely Low Blood Sugar

Blood sugar below 55 mg/dL is considered severely low. If any of the following happens, you should call 911:

• A person with low blood sugar passes out;
• A person with low blood sugar needs a second dose of glucagon;
• A person with low blood sugar had glucagon but are still confused;
• A person with low blood sugar stays too low 20 minutes after treatment or doesn’t respond to the usual treatments.

Concussion
Signs and symptoms of a dangerous concussion can include:

• One pupil larger than the other;
• Drowsiness or inability to wake up;
• A headache that gets worse and does not go away;
• Slurred speech, weakness, numbness, or decreased coordination;
• Repeated vomiting or nausea, convulsions or seizures (shaking or twitching);
• Unusual behavior, increased confusion, restlessness, or agitation;
• Loss of consciousness (passed out/knocked out). Even a brief loss of consciousness should be taken seriously.

Call 911.

This policy, and sleeping in the Library

CHOICE 1: USE IF THE LIBRARY DECIDES TO NOT ALLOW PEOPLE TO SLEEP IN THE LIBRARY Because loss of consciousness can be a sign of a medical emergency, library users are asked not to deliberately sleep or nap in the library.

If a library user is asleep in the library, staff are instructed to wake them.

In applying this rule, the library will follow the requirements of the ADA; if a library user has a medical condition that can cause uncontrollable sleep, at that library user's discretion, they may alert staff so accommodations can be made (see "ADA" above).

CHOICE 2: USE IF THE LIBRARY DECIDES TO ALLOW PEOPLE TO SLEEP IN THE LIBRARY

If you have a medical condition that can cause uncontrollable sleep, at your discretion, you may alert staff so accommodations can be made (see "ADA" above).

If you simply find that the library is a nice, quiet place for you to take a nap, please alert us that you "Plan to take a nap" so our staff knows that you are asleep by desire, and not experiencing a medical emergency causing loss of consciousness or coherence. We'll give you a nice arrangement of purple flowers[7] to keep near where you're sitting so staff know you're deliberately using the library space to rest and restore yourself.

Users must limit planned napping in the library to no later than one half-hour before close, so you have time to gather your thoughts and energy before it is time for us to close up the building.[8]

If your nap creates loud snoring or other disruption, we may have to wake you! Please be gracious to staff who are responsible for making sure the library is a welcoming and inclusive space for all.

As with any template, before adopting a policy based on this one, review the final version with your lawyer (and, as noted above, your library's insurance carrier).

And a final note: I truly wish I had a better answer to this question.  As I said at the beginning, this is a VERY sensitive issue.  But if a commitment to library access, safety, and mission guide the decision, your library can find the best answer for  YOUR library.

Thank you for this tough question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question reflects the level of savvy "Ask the Lawyer" readers bring to their submissions.  The member submitting the question has already set out (in a manner much more succinct than I usually achieve) the interplay of:

• Owner's rights (Copyright Act Section 106),
• Adaptive copies made under "fair use" (Copyright Act Section 107), and
• Copies made for purposes of accommodations for disability that impacts the ability to read (Copyright Act Section 121).

I do have one quibble with the member's phrasing, though, and it is important to this particular issue: Section 121, while it allows copies otherwise barred, does not create a "fair use" right to make a copy.[1]  Rather, the creation of an adaptive copy under Section 121 is a 100% exception to infringement made under highly precise circumstances.

What are those "highly precise circumstances"?

First, as the member writes, the end-user of the copy must be "eligible"--meaning they have a disability that impacts the ability to read (for the three "ways" for a user to be "eligible", see sub-section (d)(3)(A)-(C) of the law, below). 

Second, the copies must:

"(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication."

And third, the maker of the copies must be an "authorized entity" (which is defined in the statute; see the definition, below[2]).

This precise formula, and the right it creates, is why "fair use" is not a part of the issue at hand (adaptive copies specifically for reading-based disabilities).  None of the above-listed requirements are required to claim "fair use" under Section 107[3]. In addition, to make a Section 121 copy, there is no four-factor "balancing" test; rather, a Section 121 use is "inherently noninfringing."[4]

The above-listed Section 121 requirements to include copyright notices are also the key to addressing the member's concern: enforcement.

When an "authorized entity" is creating Section 121-based copies for "eligible" people, the institution must put copyright notices on each copy. This sets up the institution--as either an employer or alma mater--to restrict non-eligible employees and students from using them for non-Section 121 purposes.  Further, in addition to the required notices, the institution can add additional warnings, and if needed, restrict use through technological controls.[5]

Now, how much should an institution police this?  Currently, there is no case law that turns on an alleged infringement that was committed via unauthorized use of a duly made Section 121 copy.  That said, content owners are always looking for new ways to maximize revenues, so taking care to properly designate Section 121-based copies as required by law, and using policy and posted notices to reinforce those restrictions, is a wise idea.

Thank you for a well-informed and nuanced question!

HERE IS SECTION 121 OF THE COPYRIGHT ACT:

(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

(b)

(1) Copies or phonorecords to which this section applies shall—

(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

(c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

(d) For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(3) “eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.

(Added Pub. L. 104–197, title III, §â€¯316(a), Sept. 16, 1996, 110 Stat. 2416; amended Pub. L. 106–379, §â€¯3(b), Oct. 27, 2000, 114 Stat. 1445; Pub. L. 107–273, div. C, title III, §â€¯13210(3)(A), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108–446, title III, §â€¯306, Dec. 3, 2004, 118 Stat. 2807; Pub. L. 115–261, §â€¯2(a)(1), Oct. 9, 2018, 132 Stat. 3667.)

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation[1].

2.  Copying protected works is sometimes allowed under "fair use."[2]  Our school's fair use policy is posted INSERT.

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the [insert office for disability services] staff, since adaptive copies have special rules,[3] and we want to help you (or a person you are assisting) exercise your rights.

4.   Under the TEACH Act,[4] you may display or perform certain copyright-protected content in class, but that does not allow you to make additional copies for in-class or online instruction.  Please don't make copies that exceed the permission obtained by the school (unless you use our policy to determine it is fair use).

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES[1]

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation.[2]

2.  Copying protected works is sometimes allowed under "fair use."[3]  We can't give you legal advice, but if you want to learn more about "fair use," go to https://www.copyright.gov/circs/circ21.pdf or see the [INSTITUTION NAME] Fair Use policy at [LINK].

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the library staff, since adaptive copies have special rules,[4] and we want to help you (or a person you are assisting) exercise your rights.

4. As a library open to the public, there are special circumstances under which we get to make copies (libraries are special).  However, to qualify for that protection, this notice (which we have, by law, placed over the copier right in front of you), has to say what it says in bold at the very top, and we have to operate by this rule:

Any person or group is forbidden to use this machine to engage in the related or concerted reproduction or distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.

What does that mean? Entire classes should not come here and copy the whole text book for a course![5]  Please don't do that.[6]

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A library needs two documents to address this issue:

1.  Its template contract or "rider"[1] for performers and presenters;[2]and

2.  Its current Safety Plan.

How does the contract/rider come into play?  One of the conditions it should list is a "behavior requirement," requiring that any person performing a service at or for the library "will abide by the library's policies, and the reasonable requests of library staff."[3]

How does the Safety Plan[4]  come into play?  This is the document that likely addresses vaccination, PPE, and other safety requirements for those visiting your library.

Now, see how the two work together: the Safety Plan is a library policy; the "behavior requirement" means visitors must follow it.

When the two documents are assessed together, if it isn't crystal-clear that the library requires proof of vaccination before performance, the Safety Plan or the contract/riders--or both--can be amended to require:

To maximize the safety of in-person events, the ABC library requires all providers of in-person events to provide current proof of vaccination against COVID-19 at least seven days prior to the event.

 The ABC library will consider remote options if a prospective performer or presenter requests such a change as a reasonable accommodation under the ADA due to a disability.

How can this be done so simply?

While there are many nuances that libraries must consider prior to flatly requiring vaccination for all employees,[5] WHEN IT COMES TO CONTRACTORS PROVIDING ONE-TIME OR PERIODIC PERFORMANCES,[6] unless there are grant requirements or other obligations specifically hemming a library in, a library can be more blunt in its requirements.

While they can be a very beloved part of a library's offerings, independent contractors have less rights than employees when it comes to a library imposing the conditions on performance. This is because, whether incorporated, or working "DBA", independent contractors are free to accept and reject the terms of any particular contract--and thus have more leverage and freedom than employees.[7]  And because of that, when it comes to requiring them to provide proof of vaccination, there are a few less legal hoops to jump through than with employees (new, or otherwise).

So, after all that, what were the questions? "What about performers or presenters we hire to come into the library, especially to work with children? Are we allowed to ask/require proof of vaccination status before signing a contract?"

The answer is: with the right policy and contract terms[8] in place: yes.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Underlying all these highly specific questions is one Big Question: Can employers require vaccination? "Ask the Lawyer" addressed the Big Question on December 18, 2020, and that answer is perma-linked at: https://www.wnylrc.org/ask-the-lawyer/raqs/186.  For any reader who is new to this issue, or who needs a refresher, please read #186, because this answer uses that background to jump right into things.

And with that, let's jump right into things...

Question: Can we require new hires at a library to be vaccinated?

Answer: Only if the library's safety plan requires it, AND the job description of the specific position contains essential duties that cannot be performed without risk of transmission .[1]

Question: If so, how should we word this on the job application?

Answer: Here is one way:

"The essential duties of this position and the library's safety protocols require vaccination for COVID, therefore, an up-to-date COVID vaccination status is a requirement of this position."

Question: Are we allowed to ask for proof of vaccination?

Answer: Yes, but if you do, the library should have a written plan to maintain confidentially (this should be part of a Safety Plan).

Question: What if the new hire is not vaccinated because of religious reasons?

Answer: If being vaccinated is a "bona fide" occupational requirement of the position (which is what a library does by confirming that the essential duties of the position and the library's safety protocols require vaccination for COVID), a person who is not vaccinated will not become the new hire--regardless of medical or religious reasons.

As the question points out, this is a high-stakes game.  So, it is critical to work with the library's HR consultant or civil service liaison to update the job description so the front-facing work, or collaborative work, that require vaccination for that particular position is genuine.  If the "essential duties" of the position include numerous activities that could be done remotely, or in solitude, it may be that the job can be modified to accommodate either health or religious needs--both of which must be given maximum deference whenever the job requirements and the resources of the library make it possible.

Question: If the library requires those who are not vaccinated to get COVID tested weekly, does the library have to pay for those tests?

Answer:  I am not comfortable endorsing a Safety Plan or any type of procedure that includes a COVID testing requirement based solely on vaccination status.

Here is why:

The EEOC is currently the go-to agency for guidance on balancing privacy, disability, and employment needs when it comes to COVID.

Current EEOC guidance (posted at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) as of August 16, 2021, states:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. [Emphasis added]

Here's where the COVID daisy-chain begins: the EEOC is basing its notion of "basic necessity" on the guidance from the CDC.

Here is the "current CDC guidance" (posted at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html) as of August 16, 2021:

Who should get tested for current infection:

• People who have symptoms of COVID-19.
• Most people who have had close contact (within 6 feet for a total of 15 minutes or more over a 24-hour period) with someone with confirmed COVID-19.

-Fully vaccinated people should be tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

-People who have tested positive for COVID-19 within the past 3 months and recovered do not need to get tested following an exposure as long as they do not develop new symptoms.

• Unvaccinated people who have taken part in activities that put them at higher risk for COVID-19 because they cannot physically distance as needed to avoid exposure, such as travel, attending large social or mass gatherings, or being in crowded or poorly-ventilated indoor settings.
• People who have been asked or referred to get tested by their healthcare provider, or state, tribal, local or territorial health department.

Nowhere on this list is "unvaccinated employees who report to work as usual." [2] A dilemma, right?

Not as I see it.

As I see it, while we can all find something to complain about in the lurching, evolving guidance from the alphabet soup of EEOC, NYSDOL, OSHA, NYSDOH, WHO and CDC, this current configuration makes perfect sense.

Why? Because this approach achieves balance.  Within these confines, libraries (along with other employers) are positioned to structure job requirements to be as safe as possible--not just for employees, but for the communities they serve.  The structure and requirements, however, must be "bona fide," meaning that personal safety, privacy, freedom of association, and respect for conscience are positioned to be honored, while ensuring they do not gain primacy to the detriment of public safety as a whole.

For these reasons, I will not answer the question as posed.  However, I will answer:

Question: If the library requires employees who trip a current CDC risk factor (showing symptoms, close contact, etc.) to get COVID tested, does the library have to pay for those tests?

Answer: I have found no requirement that an employer pay for a COVID test that is used as a pre-requisite for returning to work.  Of course, for employees who are sick, or on mandatory quarantine, or have been sent home by their employer for tripping a COVID factor, the protections for paid sick leave[3] that were set up earlier in the pandemic still apply.

And I will add this bonus question:

Question: If the library decides to use routine random COVID testing of all on-site employees as part of a Safety Plan, does the library have to pay for those tests?

Answer:  An employer cannot require an employee to pay for a COVID test,[4] and cannot deduct the cost of such a test from a paycheck, so if the employer sets up random testing as part of a Safety Plan, the employer must pay for it.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before answering this question, I have one over-arching comment: the member who sent this inquiry was wise to submit the question when they did; it is not the type of question to be handled without the input of a pro.^[1]

Why is that?  This type of situation is, of course, riddled with legal pitfalls.  ADA, FMLA, paid sick leave law, workers' comp law, OSHA, union contract (if relevant), NY Civil Rights law, personal injury law, employee manual compliance...the list of legal considerations is lengthy.

But just as, if not more critical--and often buried in all the legal--is the fact that a place that "fires" a worker after they were injured in the line of duty risks seeming...heartless.  Mean.  Cruel...or at least, unfeeling.

Fortunately, focusing on the human sides of this type of issue (how is the employee doing?  Are they getting everything they need from the library's comp carrier?  Might their doctor clear them for light duty? How has the injury impacted their family? How are co-workers handling the loss of their co-worker's contributions?) will actually build the best framework for taking care of all the details that are "legal."

How can that happen?  With the pro helping them do things like: drafting a leave letter, developing an interim staffing plan, and planning for the employee's return to work, the Board has time to focus on the human factors.

So, how long can a library hold open a job while an employee is out on disability due to a work-related injury?  There are too many factors to give a numerical answer.  This is one where a library, museum, archive, historical society, etc. should seek a professional^[2] to get a custom response--enabling leadership to focus their energies on concern for the employee, the workforce, the community, and the library.

MEMBER QUESTION

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Here's something positive and affirming I can say: it's possible that the members expressing different opinions on the member directors' list are actually all correct.

That’s because, while I can't give one "clear yes or no answer" to this question, I can give five...five answers based on different scenarios about the facts "before an employee comes to work," including their symptoms, COVID exposure, and the safety measures needed to reduce the risk of COVID transmission in their workplace.

Here the five scenarios are:

Scenario 1

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work,[1] if the employee reports symptoms as part of routine screening.[2]

Scenario 2

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work, if an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19.[3]

Scenario 3

No, an employer does not have to, and has no basis to, require a negative COVID test before an employee comes to work, if the employee is working 100% remotely at home or in a location not at all controlled or at the direction of the employer.[4]

Scenario 4

No, an employer may not require a negative COVID test before an employee comes to work, IF the employee has a medical basis to not be tested; without a negative test, however, if certain screening factors were tripped (such as those in item 2, above) the employer will have to enforce other prescribed measures to comply with state requirements and reduce the risk of transmission within the workplace, such as a mandatory quarantine.[5]

Scenario 5

Yes, an employer can require a negative COVID test before an employee comes to work, if an established safety plan based on applicable OHSA guidance and the employee's job duties warrant that level of caution.[6]

Conclusion

I am not surprised you were unable to find a clear answer from a single reliable source, as these five scenario-based answers had to be cobbled together from two separate documents from the New York State Department of Health, which when combined, require employers to:

"Implement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact[7] with confirmed or suspected COVID-19 case in past 14 days. Assessment responses must be reviewed every day and such review must be documented."

AND

"An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing." [emphasis added]

AND

"If an employee tests positive for COVID-19, regardless of whether the employee is symptomatic or asymptomatic, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic."

AND

"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is experiencing COVID-19 related symptoms, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms."

AND

"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is not experiencing COVID-19 related symptoms, the employee may return to work upon completing 14 days of self-quarantine."

AND

"If an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19, the employee must be separated and sent home immediately and may return to work upon completing at least 10 days of isolation from the onset of symptoms OR upon receipt of a negative COVID-19 test result." [emphasis added]."

And there you have it. I am not sure if this will make things clearer, but hopefully I have added some clarity to the uncertainty. 

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is an incredibly sensitive, important, and complex set of questions.  I know a lot of people out there in "library land" are waiting on the answer—from many different perspectives.

So we're going to take it slow, break it down, and unpack the components of the answers one step at a time.

Step 1: Considering requiring immunization to COVID-19 as part of a library's evolving Safety Plan

As I have emphasized in numerous pandemic-related answers, any library operating in any capacity right now should have a trustee-approved Safety Plan tailored to its unique operations.  The plan should evolve as new safety-related information emerges, and as library operations change.

As of this writing,^[1] some libraries are open to visit.  Some are doing only curbside.  Some are offering more remote programming.  Some have used their information management and lending capacity to distribute PPE, food, and living supplies.  Because of this diversity of service, they all should have different Safety Plans.

The Safety Plan of a library closed to the public for everything but curbside will be different from the Safety Plan of a library open for socially distant use of computers and lending.  The Safety Plan of a library distributing fresh produce will be different from a library streaming programming from its community room to an audience within its area of service (and beyond).  The Safety Plan of a library operating with ten on-site staff in December should be different from the one they used when there was only one employee on-site in June.

Just like the decision to use a particular mode of sanitization, as a library undertakes and changes its unique services, the decision to require immunization of employees should start with vaccination's role not as a stand-alone solution, but as part of an overall approach to limiting the impact of the pandemic on your library, its employees, and your community.  Do the services your library needs to provide the community warrant immunization of employees?  If so, keep reading.

Step 2:  Wait, so does what you said in "Step 1" mean a public library can go ahead and require employees to be vaccinated?

Yes...and NO.

I say "yes," because under the right conditions, the law does allow employers to impose conditions for safety, and that can include mandatory vaccination.^[2]  However, I also say "NO," because the phrase "the right conditions" carries a lot of complexity for three little words.  To be safe, the default assumption of a library^[3] should always be that it can't require immunization of its employees...and then work to find the way, if well-informed risk management and an updated Safety Plan warrants it, it can require immunizations (and just as critically, if it should).

Step 3: Assessing if a library can require vaccination of employees

Before a library gets too far into an internal debate about if it should amend its Safety Plan to require vaccination of employees, it should assess if it is in a position to do so.  This means having an experienced HR administrator or attorney look at the organization's bylaws, policies, and employment relationships to see if there are any steps or bars to the requirement.

What could such a bar look like?  The most common impediment a library will run into on this is an employment contract—either for individual employees, or with an entire employee union (a "collective bargaining agreement").  The bottom line on this type of impediment: if there is a contract in play, a library must be very tactical, collaborative, and strategic prior to creating—or even considering—immunization as an employment condition.^[4]

Another bar might be language in an employee handbook or a pre-pandemic policy.  Still another might be that "gray area" when library employees are considered employees of a school district, village, or town.

The best overall guidance I can offer on this Step is: assessing if your library is positioned to require immunization is a critical step to using vaccination as a tool in your Safety Plan.  Bring in a ringer to help your library assess the extent of what it can do.

Step 4:  Assessing if a library should require vaccination of employees

Okay, let's say you consulted with the best employment lawyer in your village/town/district, they took a close look at whatever relevant contracts and policies your library has, and they have said: "No problem, you can require this."^[5]

The next important thing to consider is: should your library require this?

Compelled immunization^[6] is an incredibly sensitive area of policy and law.  Since the time Ben Franklin started insisting on smallpox immunizations,^[7] this public health issue has had passionate rhetoric on both sides of the debate. 

I have worked with families whose children have documented contraindications for certain vaccines, and it is not a simple issue.  And right now, a public discussion is happening about why people who are African-American might not trust being offered a first round of vaccination.^[8]  These are life-and-death issues.

That said, those on the front lines of public service, during a time of pandemic, are at higher risk of both getting infected, and spreading disease.  Science shows vaccination will mitigate that risk.  Thus, under the right circumstances, encouraging such employees to be vaccinated is the right thing to do, and in some cases, employers have made the decision that requiring vaccination is the right thing to do.

The consideration of this question is classic risk management.  What critical services is your library providing to the community?  What exposure to possible infection do those services create?  Does social distancing, PPE, and sanitization mitigate those risks within acceptable tolerances, or would requiring vaccination of employees demonstrably make those employees and the community safer?  Are there certain duties that merit requiring immunization, and other duties (jobs performed 100% remotely, for instance) that do not?  And critical: is mass employee immunization in step with the approach of your local health department?^[9]

There is no cookie-cutter answer to these questions, but a responsible decision to require immunization of employees as part of a well-developed and evolving Safety Plan should answer them all.

Step 5:  Developing a robust policy that includes consideration of civil rights, the ADA^[10] and privacy

So, let's say your library has followed Steps "1" through "4" and has decided it can, and should, update its Safety Plan to encourage or require immunization of employees.

The next step is developing a policy that:

• Demonstrably does not discriminate or have an unintentional disparate impact on any protected class of people (race, religion, sex, etc.);
• Has appropriate measures for people to opt-out based on a disability accommodation under the ADA or the New York Human Rights Law;
• Protects the privacy of those who either meet the requirement, are granted an accommodation to not meet the requirement, or who must be terminated due to refusal to meet the requirement.^[11]
• Manages liability through good planning and the transmission of accurate information, not (just) waivers of liability.[12]

I also suggest that the library strongly consider ensuring, well in advance, that: 1) the vaccine is available to employees, and 2) that employees don’t have to pay for it.  This is because 1) once the library has identified that there are risks in its operations that would be best mitigated through immunization, those activities should be limited until the mitigation is in place, and 2) there can be legal complications if the vaccination requires personal expense.  While this advance planning and cost containment is not precisely a legal compliance concern, they are close first cousins, and should be addressed as part of the Safety Plan. 

Step 6: If a library decides to require immunization, develop a PR Plan (optional, but a very good idea)

I don't need to tell a library audience that what a public library does on this topic will be scrutinized, criticized, and eventually, also a model for the rest of your community.^[13]  Since any decision on this point will have its critics, and also (hopefully) its fans, be ready to let your public know, simply and straightforwardly, the basis for your library's decision.

I like the classic "FAQ" approach.  Here are two model FAQ's for two libraries that did the legal analysis and safety assessment, and come to the following decisions:

FAQ: I was told the library board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include supporting voluntary immunization of employees.

FAQ:  Voluntary?  So you are not requiring it?

FAQ ANSWER:  Our risk analysis and still-limited operations showed that we could meet the community's needs by requiring masks, social distancing, and routine sanitization.  We have now added supporting employees in getting vaccinated on a voluntary basis.

FAQ:  Will you ever require it?

FAQ ANSWER:  Only if our operations change and an updated risk analysis shows us that it is best for our employees and for the community.

Another "FAQ" example, for a library that came to a different conclusion, is:

FAQ: I was told the board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include mandatory immunization of employees who are able to be vaccinated.

FAQ:  Why is the library requiring employees to get vaccinated?

FAQ ANSWER:  Feedback shows that the community needs us providing critical services right now.  Our risk analysis showed that in addition to requiring masks, social distancing, and sanitizations, immunization by employees would protect their health, and the community's, while we provide those services.

FAQ:  The vaccine is not 100% available yet.  Did your employees have to do this on their own?

FAQ ANSWER:  Our library worked with [INSTITUTION] to make sure our employees had access to this safety measure, without cost to them.

And that's it.^[14]

The important take-away I want to emphasize here is that for individual libraries, there are no quick answers to these questions.

Libraries of all types will be assessing their unique legal and risk positions, and will need to make carefully documented and executed decisions.  Libraries within larger institutions may need to fight for consideration separate from other operations.  Public libraries will need to consider the heightened transparency and public accountability they operate under.  Library systems will be thinking about how they can protect their employees while also supporting their members.  And for the employee on the ground, they'll be thinking about keeping themselves, their families, and their communities safe.

By taking careful, deliberate, and well-informed steps, the answers to the member's questions can be found.

Thank you for a vital question.

MEMBER QUESTION

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

[emphasis on "suspected" has been added]

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

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

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

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

I wish you a strong and steady re-opening.

MEMBER QUESTION

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

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

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

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

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

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

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

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

However.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MEMBER QUESTION

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

New York has numerous “types” of libraries, serving a diverse array of locations.  All of them are empowered to take the steps needed to serve their communities safely.

For libraries who want to do just that—knowing it will be a vital part of their community’s response and recovery—here is how to enact and enforce the use of appropriate personal protective equipment (PPE).

Step 1

Assess your library’s status under the current Executive Orders.  Does your library regard itself as exempt from the Orders due to status as a governmental entity (like a school)?[1]  Or has your library been operating under compliance with the 100% workforce reduction…and thus, subject to further such restrictions (or them being eased)?

If your library is subject to the Executive Orders, linking your policy to future Orders is a good idea.  That’s why you’ll see that as a variable in the template, below.  And if your library concluded it didn’t need to follow them, well, that part doesn’t apply to you.  

Step 2

Assess what operations your library will resume.  Will you resume lending books, but restrict reading rooms?  Will you encourage curbside pickup, or perhaps lower your building capacity to ensure social distancing?

This step assumes that the return to full services might be incremental—but with the resumption of services tailored to the needs of your community.  It is where the customization kicks in.

Step 3

Once your library has confirmed which activities will resume, select the appropriate safety protocols for those operations.

This is why this will not be an exercise in one-size fits all.  Some libraries may decide to expand reading rooms or acquire additional electronic devices to loan.  Some will need masks, some may need gloves, and others might adopt different safety measures.  What’s important is that the measures be tailored to the activity.

As a starting place[2] for that selection, I really like this function-centered guidance from OSHA:

https://www.osha.gov/SLTC/covid-19/controlprevention.html#interim

NOTE on this guidance from OSHA: While the common thinking might be that libraries are primarily “customer service” environments (as the term is used by OSHA), many libraries have back end and programming operations that are even more interactive and tactile than retail.  That’s why I like OSHA’s approach for this—it sorts COVID-19-related safety practices by function (of course, ALA and other library-specific resources will further distill and assess these resources for libraries[3]).

Step 4

If the option is available to your library, I strongly recommend confirming your library’s operational choices and related safety practices with your county health department.  Your local health officials may even have some thoughts about unique considerations for your locality (after all, that is their job).  This is also a great way to show the public that your library has thought these measures through thoroughly, that your choices are rationally related to your activities, and that they have credentialed back-up.

Step 5

As the member writes, once you have selected your operations and confirmed your safety measures, add the measures (temporarily) to your library’s Code of Conduct.

Here is a template policy for doing that (variables are in yellow, including whether or not your library must abide by the current Executive Orders):

In developing this guidance, I have considered the long line of federal cases related to the library access (starting with Kreimer v Bur. of Police).[4]

New York has a vivid array of people devoted to civil liberties, and there is a chance a community member could feel that conditioning library access on temporary protective measures adopted in the interest of public health could violate First Amendment or other rights.  This is why careful consideration of what operations your library will resume, and enforcement of only those safety measures related to those operations (steps 1 and 2), are so critical.

The First Amendment tests of such measures will vary based on the circumstances,[5] but the goal of combining a clear policy with well-documented, informed decision-making, good communication, and the backup of health authorities, is to avoid the need for such legal testing in the first place!

As with all things template, the suggested language above should be modified to fit your unique library.  If there is a local attorney versed in First Amendment and municipal law, this is a good time to bring them in to review your final product.[6]  The town attorney for your municipality will have had to address similar First Amendment/safety concerns (and is probably doing a lot of that right now), so they might be a good pick.

And now, with all that as background,[7] to address the members’ specific questions:

Can a library prevent someone from coming into the library if they refuse to wear a mask?

Yes (but follow the steps above).

Are libraries required to provide a mask for the public?

No (but hey, it would be nice, especially if you can get them donated).

And what if a person wears the mask improperly - can they be asked to leave?

Yes (but take care to consider any implications under ADA[8]; some people might need to use alternate PPE).

Thank you for a great question.  I wish you safe operations as you serve your community.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

On the surface, this is a simple issue: if people are using their cell phone for personal use on the job, a simple policy to stop the use should solve the problem, right?

Not these days.

As technology continues to transform the workplace (and the world), “cell phones away, please,” is not as easy as it once was.  People use their cell phones to monitor health, track their steps, and get emergency calls from kids at school.  Some may even use their cell phones to save their lives, serve as a witness to illegal activity, and exercise their right to free speech. 

Many of these functions depend on the proximity of the person to the phone (or the watch that connects them to it), and because of this, cell phones are becoming extensions of the people who own them.  So a policy to keep them stowed and away, or secured in a locker, can be met with resistance. 

Here are a few examples of how this “resistance” can play out on the job:

• An employee who is the parent of a child with Type 1 Diabetes may want their cell phone on them to keep an eye on their child’s glucose level[1] while the child is at school;
• An employee who being stalked by an ex may want the phone to record evidence to seek a protective order;
• An employee trying to lose weight per a doctor’s orders may be using a supportive app and a Fitbit;
• An employee may want to use their personal camera phone (“it’s better”) to take pictures for the library’s Instagram;
• An employee may need to text their partner to confirm who is picking up the kids, making dinner, and mowing the lawn before it turns onto a meadow;
• An employee may really love to play Candy Crush Saga® when things are slow at the reference desk.

As can be seen, many of the reasons to keep a cell phone on one’s person are compelling; other uses may not be.  And many of reasons/uses overlap with other library policies.

The goal, of course, is not to bar an employee from important connections and a tool for their well-being, but to make sure the use of personal electronics does not distract from the library’s professional environment and employee productivity (even on a slow day).  To achieve that, there are two broad solutions: 1) rely on a collection of policies to address the variety of purposes for personal cell phones while at work; or 2) create a catch-all policy. 

In a work environment where consistency for staff members is critical for professionalism and productivity, I prefer a combination of both.  What does that combination look like? 

It starts with policies for:

• ADA accommodations
• FMLA
• Domestic violence victims’ accommodations
• Workplace violence prevention
• Communications/media
• Use of technology
• Confidentiality of library records and patron privacy
• Employee conduct

…which should all allow for appropriate use of personal cell phones and electronic devices.  This doesn’t mean the policy has to mention cell phones specifically—just have enough flexibility to address them.

At the same time, assuming the above-listed policies harmonize with it, creating a specific “Policy on Use of Personal Cell Phones and Electronics,” as proposed by the member, can help employees and management navigate these issues in a rapidly changing world.

Here is an example of such a policy[2]:

[INSERT LIBRARY NAME] Policy on Personal Use of Cell Phones and Electronics

The mission of the [INSERT LIBRARY NAME] depends on employees maintaining a professional, productive environment. 

To maintain that environment, use of personal cell phones and electronics should only divert employees from work duties in the case of an emergency. 

To achieve this, cell phones and personal electronics should be stored in a carrier, purse, or pocket where the screen is not visible during work time, and watches synched with other electronics should not divert employees from work except during designated breaks in designated break areas. 

Sudden personal emergency needs that require use of a cell phone or other personal electronics should follow the established procedures for use of break time and personal time.

Use of cell phones and personal electronics for ADA accommodations, FMLA arrangements, personal emergency, and personal safety needs are exempted from this policy, and should be arranged on a case by case basis with a supervisor per the relevant policy. 

As with most HR policies, this one sounds simple, but can be complex to administer.  The need to be flexible and allow some cell phone use (especially ADA use, the basis of which may be confidential), can cause seeming inconsistency in enforcement.  To address this, employees must be sensitized to the fact that some people may depend on a personal devise for an authorized (and confidential) use, while at the same time be given the clear message that keeping in touch with social media and personal contacts during work time is not allowed.

As technology puts pressure on the norms of society, it is important to draw (and re-draw) reliable and clear boundaries…especially in the workplace.  So should a workplace have a policy on personal cell phones?  Done right, and with due consideration of the law, it can help.

Thanks for a timely question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me.  Can they do that, or can you help me sue?”[2]

If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process.  For the sake of argument, let’s say that for every question I pose, the answer is, “No.”

• Do you have a disability that requires you to be barefoot?
• Do you hold a sincerely held religious belief that requires you to be barefoot?
• Does this rule disproportionately impact you as a member of a protected class?
• Are you subject to some type of judicial order that requires you to be barefoot?[4]
• Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?

Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”

Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State.  So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.

This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land).  A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it.  And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy). 

The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law.  Country clubs may require a formal style of clothing, while barring cleats and spikes indoors.  Children’s camps may require kids to wear shoes (with backs!).  Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]

Why all this commentary about the law and clothing? I’ll make it clear.  Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]

It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions.  The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too.  And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.

So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes.  On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs.  That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).

Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules.  I want to stress: such factors are variable.  The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through).  But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice.  And it’s okay to insist on it.

Thanks for a great question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

It makes sense that “Ask the Lawyer” gets a lot of Americans with Disabilities Act (“ADA”) related questions.  After all, both the ADA and libraries work to reduce barriers—barriers to information, barriers to education, and barriers to services/employment.   

The issue of fragrance sensitivity and ADA compliance brings unique challenges. 

For people living with this disability, the stakes are high: itching, burning, sneezing, rash, nausea, headache, and breathing problems can all result from exposure to even small amounts of fragrance in the air.  And there is no reliable way to predict what precise product might carry the triggering chemical, scent, or compound.[1]

To drill down into the member’s question, if the sole concern the patron has raised has been about access to the bathroom, then it may be that this sole adjustment was sufficient.  However, I have found it is best to work through ADA accommodation issues from a broader perspective, by asking: within attainable, affordable and (thus) reasonable measures, are we doing all we can to reduce barriers to access?

In a bathroom, this could be limited to removing a scented air freshener, as the member has done.  However, it could be that in addition to the air freshener, particular cleaning products, ambient scent entering the bathroom via the air ducts, and other fragrances (some of them on people) are invading the space and triggering the negative impacts.  In that case, the key is to reduce all fragrances in the space (within the bounds of what is “reasonable”), perhaps by:

• changing cleaning products
• changing the HVAC system
• having a scent-free policy

--all of which could be considered an accommodation under the ADA.

Not all of these accommodations, however, are automatically “reasonable.”  Switching cleaning supplies could require a negotiation under the standing contract with a professional cleaner—or could be as easy as selecting fragrance-free products.  A small library with an annual budget of $150,000.00 would find it too expensive to re-route the HVAC at a cost of $200,000.00—but perhaps could install a small window fan, drawing in fragrance-free air, for a much lower (and thus reasonable) cost.  And the “reasonableness” a fragrance-free policy will depend on several factors, based on who it impacts.

A “fragrance-free” policy can be imposed upon employees after due consideration of overall working conditions, any union agreement, and related policies.  However, a “fragrance free” policy for the visiting public poses broader difficulties.  As just one concern: while most libraries will find it reasonable to address extreme hygiene issues that impact everyone (like visitors who may bring the pungent odor of fecal matter[2]) through a “Patron Code of Conduct” to, a facility-wide “fragrance ban” could (ironically) impose limitations on library access.

This is where design—and well-crafted library-specific policy—can help out.  Depending on the library, a climate-controlled area with separate HVAC or windows can be set aside as a “fragrance-free” area.  A sign could say “This area is designated as fragrance-free.  Please observe this restriction in consideration of fragrance-sensitive patrons.”  For libraries considering updating their facilities, although not currently required by current (2010) “Standards for Accessible Design[3],” a room with adequate heating/ventilation/ac (“HVAC”) to achieve this separation is worth considering.

As someone who is addicted to Lush’s “Dirty” body spray (spearmint and tarragon, just the thing to spritz after a stressful day of lawyering[4]), I realize it is easy to write about creating a scent-free space, and hard to navigate the human aspects of policing one.  Further, as discussed, there is no one-size-fits-all approach. The bottom line for compliance is: within the limits of what is financially, operationally, and physically feasible at your library, consideration of a fragrance-free environment should be made.  When the access under consideration is for a bathroom, access to the accommodating facility should be clearly designated, and a bar to fragrances should clearly apply to the space.

A great resource for starting this fragrance-free journey, including sample language for when considering a policy, is https://askjan.org/disabilities/Fragrance-Sensitivity.cfm?.  As always, before using cookie-cutter language, it is best for a library to check its charter, bylaws, other policies, lease, and any union agreement before crafting their own, unique policy to meet the needs of their community.

I hope this answer passes your “sniff” test.

MEMBER QUESTION

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.

MEMBER QUESTION

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.