RAQs: Recently Asked Questions

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

MEMBER QUESTION

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

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

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

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

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

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

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

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

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

However.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

Topic: Library Lockdowns - 12/28/2018
Should an event occur, is it legal in NYS to institute a lockdown in a public library? ...
Posted: Friday, December 28, 2018 Permalink

MEMBER QUESTION

Should an event occur, is it legal in NYS to institute a lockdown in a public library?

WNYLRC ATTORNEY'S RESPONSE

This question brought back a lot of memories for your “Ask the Lawyer” attorney.  

Between 2006 and 2017, I was a full-time in-house attorney on a college campus.  On April 16th, 2007, my time in higher ed was forever changed, when the entire campus froze to watch the reporting from Virginia Tech.  32 people dead.  17 wounded.

Over the years, as incident after incident occurred on schools and college campuses, my colleagues in higher education would wonder “Are we next?”[1]

I was lucky; my campus had no such incident during my time there (or since).  But I was there for the development of our active shooter response protocol, there for our on-campus trainings, and there, as an administrator, for our “incident response” trainings with local, state and federal law enforcement…getting ready for a day when we might not be lucky.

Large (and small) public institutions and facilities like schools, museums, malls, and of course libraries have been struggling with how to prepare for the day someone brings a gun and threatens or perpetrates violence on their property.  It is a horrific thing to contemplate, and a scary prospect to plan for…especially because there is a diversity of opinion as to what the best prevention and training techniques really are.

Some institutions have the benefit of mandates.  In New York, all schools must practice active shooter response, and there are laws, regulations and experts in place to guide those mandated drills.  And college campuses are mandated to prepare for emergency response.

Public libraries, on the other hand, do not have such a state-wide mandate.  Although chartered and operated in connection with a municipality, they are independent operators.  This means that though they may choose to follow whatever policy or procedure their municipality has developed for emergency response, or to adopt their own, that choice requires board approval.[2]

But the member’s precise question is: is it legal in NYS to institute a lockdown in a public library?

First, let’s clarify what is meant by “lockdown.”

Per §155.17 of Chapter 8 of New York’s Rules & Regulations: 

Lock-down means to immediately clear the hallways, lock and/or barricade doors, hide from view, and remain silent while readying a plan of evacuation as a last resort. Lock-down will only end upon physical release from the room or secured area by law enforcement.

To some people, “lockdown” (hiding, barricading) in the face of an active shooter sounds like a really good idea.  Others might prefer to run.  And still others think the best option would be to fight.

According to the New York State Division of Homeland Security and Emergency Services, depending on the situation, any of these could be the right choice.  Watch the video, “480 Seconds” at this link[3]. It depicts, in stark and practical terms, the different “best” responses, depending on an active shooter situation.  http://www.dhses.ny.gov/aware-prepare/step3.cfm

“Lockdown,” as defined in the NYS Education Law, was determined to be the best option for schools because they house a large, vulnerable population of minors.  While many of us only hear about this procedure through our kids (as we try to conceal our terror), school librarians know first-hand that the drills our kids do are only a small part of a system that requires:

  • extensive site analysis;
  • the creation building safety teams;
  • designation of emergency gathering spaces;
  • communications plans; and
  • extensive training of staff. [4]

Any lockdown plan should be this well-developed, because as “480 Seconds” shows, sheltering in a secure place is not the only response to an active shooter situation.  Further, even in a place with a lockdown plan, responses will vary by building type, function, and population served (consideration of people with different disabilities, for instance, requires continually renewed attention).  Given certain variables, a lockdown procedure might be the best option, but even once that has been determined, ensuring doors can be secured, signage is properly posted, and staff are trained, are all critical elements of the plan.

So, is it legal to institute a lockdown procedure in a public library?  Yes. Library boards can (and should[5]) pass emergency response policies, include active shooter policies, and a lockdown plan might be determined to be the best response.  That said, unlike schools entrusted with minors, libraries serve a large population of independent, autonomous adults.  Unlike law enforcement responding at the scene, a staff directive to stay in place will only have the force of library policy…which is different from an order by law enforcement[6].  A person who wants to leave (and whose biology is telling them they MUST leave) might do so.

For me, the most important aspect of this question is not if a lockdown policy at a public library is “legal,” but how a public library develops its active shooter response plan and trains its staff.  This can be no cut-and-paste job; it is a work for a credentialed and experienced expert.  There is grant money and aid out there for not-for-profit libraries to seek this critical input.  And in many places, simply reaching out to local government can put you in touch with all the resources you need. 

Just like “480 Seconds,” the services of an expert[7] will help your library apply the collective wisdom about active shooter situations to the somber but vital act of planning for an actual situation. 

We can never be truly ready for an active shooter incident, but we can be prepared.  Lockdown might be part of that preparation.  Thank you for this important question.



[1] It was probably a false sense of security, but these were the times when I was glad to have ROTC on campus.

[2] There is one exception to this: a public library that rents its property may be required, in its lease, to follow the rules of its Landlord. But that would still mean the board had approved the terms of the lease.

[3] This video is not graphic, but it is very serious.  I suggest you not watch it at your library unless it is part of an in-depth and well-considered training on active shooter response, led by a credentialed and experienced expert (local law enforcement should be able to assist in finding that person).

[4] See NYS Education Law §2801-a.

[5] An emergency response plan, along with plans for an active shooter, is listed as a recommended policy in the NY Library Trustees’ Association’s 2018 Trustee Handbook, page 115.

[6] Of course, some libraries have private security, or coordinate with law enforcement.  If that is the case for your library, their training and level authority must be incorporated into your plan, and that may change the dynamic.

[7] This is very serious: your plan and training should be put in place using a contracted, person with established credentials and experience writing and training on emergency preparedness and active shooter response.  There are many accredited and recommended programs for this.  For a public library, this would be through the usual procurement process.

 

Tags: Policy, Management, Safety

Year

0

2016 4

2017 24

2018 29

2019 42

2020 51

Topics

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Academic Libraries 2

Accessibility 4

ADA 7

Association Libraries 1

Branding and Trademarks 1

Broadcasting 1

Budget 1

Circular 21 1

Contact tracing 1

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Copyright 69

COVID-19 35

CPLR 4509 3

Crafting 1

Criminal Activity 1

Data 2

Defamation 1

Derivative Works 3

Digital Access 9

Digital Exhibits 1

Digitization and Copyright 10

Disclaimers 3

Discrimination 1

Dissertations and Theses 1

DMCA 2

Donations 3

E-Books and Audiobooks 2

Ed Law 2-d 1

Education Law Section 225 1

Elections 2

Emergency Response 33

Employee Rights 7

Ethics 3

Executive Order 3

Fair Use 29

Fan Fiction 1

Fees and Fines 3

FERPA 5

First Amendment 1

First Sale Doctrine 3

Forgery and Fraud 1

Friends of the Library 1

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Hiring Practices 1

Historic Markers 1

HRL 1

Identity Theft 1

IRS 1

Labor 3

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Licensing 3

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Management 16

Meeting Room Policy 3

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Section 108 2

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SHIELD Act 2

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Social Media 4

SORA 1

Story time 3

Streaming 12

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Teachers Pay Teachers 1

Telehealth 1

Textbooks 3

Trustees 3

Umbrella Licensing 2

VHS 4

Voting 1

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WAI 1

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Zoom 1

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