We are a large (100-employee) school district public library. We are currently encouraging and educating employees on getting vaccinated, but not (yet) *requiring* vaccinations. We are providing employees with up to 4 hours of paid time off to obtain the vaccine voluntarily--if their vaccine appointment occurs during hours/days when they would otherwise be scheduled and working for us--and requiring proof of vaccination if this paid time off is used.
My question has to do with requiring or requesting proof of vaccination for employees who get vaccinated during their "off hours" and opt not to use this specific paid time off type. Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?
If we can obtain proof from everyone, I assume that this should be handled by HR (me) in the typical manner of any confidential medical information. But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers? They might wish to know details in order to schedule staff accordingly. But at the same time, I would be leery of divulging such information, out of concerns for maintaining employee confidentiality, possible discrimination by unwitting supervisors, etc. I might be more inclined to/comfortable with reporting general numbers--i.e., of 100 employees, 29 have been vaccinated to date--than to share employee-specific details, but am not sure if that would be helpful, or really what information *is* helpful for employers to track and report on internally where vaccination status of staff is concerned.
This is an invaluable service. Thank you for your consideration of my questions and for any guidance you can give!
Over and over again, I am floored by the care, tenacity, and creativity of the libraries determined to provide services in a time of pandemic. New York's libraries just don't give up. This question shows the mechanics of that fighting spirit.
So much of what we do in this pandemic comes back to why we are doing things in this pandemic. For many libraries, the "why" of offering services is making sure their communities have lifelines to professionally curated information.
For this question, the "why" of asking for proof of vaccination is right there in the submission's core:
... so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
Let's take that "direct threat" part first.
Back on March 19, 2020, we addressed a question about employer (library) liability due to Coronavirus exposure. Although much has changed since that time (we have vaccines), the basic recipe for liability has not changed: liability happens when a person/entity owes a duty of care to a person, does not perform that duty, and the failure results in damage.
Because if this recipe, it is essential for libraries to always know what "duty of care" they owe their workers, and their community.
In a pandemic, evolving data and resulting best practices can change the "duty of care" rapidly (No masks? One mask? Two?).
While many resources are aggregating and pushing out up-to-the-minute guidance on "best practices," there are only three places libraries in the State of New York should be drawing their duty of care practices directly from: the New York State Department of Health ("NYSDOH"), the Centers for Disease Control ("CDC"), and the Occupational Hazard and Safety Administration ("OSHA").
Right now, as of this writing, OSHA's 1/29/2021 workplace guidance[1] for mitigating the impact of COVID-19 lists 16 "elements" of an effective COVID protection program. Here is what OSHA recommends about using awareness of vaccination status of employees:
Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
So right now, the "duty of care" set out by OSHA expressly excludes relying on vaccination status to reduce the spread of the virus. Rather, it focuses on providing and insisting on appropriate PPE.
That said, in the same guidance, OSHA continues to recommend allowing employees who self-identify as medically vulnerable to swap tasks to limit risk:
Offer vulnerable workers duties that minimize their contact with customers and other workers (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.
This means if a person, relying on their vaccination status, decides to not self-identify as medically vulnerable, the employer is not advised to offer them contact-minimizing duties.
There are other steps on the current OSHA list that the member is already doing. By enabling the use of PTO for vaccination, they are following the guidance in element "14":
Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.
This guidance, I imagine, will evolve. That evolution should be reflected in revised Safety Plans.
And with that said, let's answer the member's specific questions:
Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
Based on the current OSHA guidance, along with guidance from the EEOC, the answer to this is "yes," and then "no." Yes, an employer can ask for proof of vaccination (whether acquired on PTO or off-hours).[2] No, right now, it should not be used for assignment of duties[3] or with the idea of reducing possible liability.
Here is the member's follow-up question:
If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?
Based on the current OSHA guidance, along with guidance from the EEOC, right now does not seem like the time to rely on vaccination status and data to make determinations about workplace risk management and safety. So while requiring a notification of vaccination status may be permissible, it does not appear desirable if its purpose is to mitigate concerns about liability.
If, however, the motivation is to verify that the library is effectively encouraging the most employees possible to get vaccinated—simply for the employees' own personal health and safety—then yes, tracking those metrics (and any non-disability factors barring vaccinations) might not only be permissible, but desirable. In that case, the question is: does the information need to be tied directly to a particular employee, or is it just as meaningful if anonymous?
Which brings us to the member's last question:
But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers?...I would be leery of divulging such information, out of concerns for maintaining employee confidentiality...
This HR manager knows their stuff!
First, yes: no matter what, never create a risk of trampling on employees' privacy.
Second: Right now, it appears that sharing such information is unnecessary.
In a December 18th, 2020 "Ask the Lawyer," I stated that a vaccine requirement should only be implemented if it is part of a well-thought-out, board-approved Safety Plan. Right now, it appears that no Safety Plan should rely on a vaccine requirement to reduce transmission of the virus. With that in mind, right now, it appears the safest course of action –both COVID-wise, and legally—is to encourage vaccination, but not require it, and if a library tracks it, only do it for purposes of encouraging more employee vaccinations (or finding out you've hit close to 100%).
Of course, here we are on February 26, 2021. If you are reading this in March, or April, or that sunny, warmer time in the future, May and beyond[4], this answer might no longer apply.
Keep checking with NYSDOH, with the CDC, and of course, with OSHA. At some point, requiring vaccination—or allocating duties by vaccination status—could become something expected of an employer. If that happens, a library's "duty of care" could change, altering the threshold for liability, and the answer to these questions could shift—some subtly, some not-so-subtly.
But we have had a lot of twists and turns in the Pandemic. That "shift" may or may not happen.[5] As I often say at my office, "the only plan we can make is that the plan will change." And how do you plan for that? By doing what this member has done: keeping employees' well-being and safety at the forefront, and adapting every time the data and guidance change.
If your library does that, you'll be as safe as you can be. And mitigate your liability.
Thank you for a thoughtful question.
[1] Posted as of February 26, 2021 at https://www.osha.gov/coronavirus/safework.
[2] This answer is found on the EEOC site at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws as of 2/26/2021. "K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20) No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. ... If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA."
[3] Remember, if the employee uses vaccination status to self-identify as vulnerable, such information can be considered by the library reactively (and confidentially). For more on that, see the "Ask the Lawyer" from January 19, 2021.
[4] Garden time! Can you tell I can't wait to get into the dirt? It always feels so distant, this time of year.
[5] As OSHA says, more research is required.
Tags: COVID-19, COVID-19 Vaccine, Emergency Response, Employee Rights, Policy, Public Health, Public Libraries
The governor announced that the vaccine rollout to public employees would be through our unions and health groups, but also said that WE need to prioritize who receives the vaccine first (based upon risk factors/comorbidities) since the supply is limited (as the governor mentioned in Friday's press conference) --it will probably take a few months to vaccinate every staff member who wants one.
How can we organize our internal "prioritization?" Should we prioritize those with underlying health conditions, or use other criteria? What about HIPAA? I want to do this fairly, but I am also concerned about the ethics.
The member's caution shows how important it is to get this one right.
Before delving into it, I want to say: for public libraries with a union, this is one to confer with union leadership on.
For public libraries without a union, it will be good to think about not only your internal prioritization, but the messaging around it.
And for all libraries connecting their employees to vaccine, this is one to plan in careful coordination with a board committee, your lawyer, and your local health department.
With the right participants at the table[1] and careful consideration of ethics and privacy, finding the right plan for you won't be easy, but you will get it right.
This question is about the "ethics and privacy" part of the process. For a public institution that will be part of this rollout, the State of New York's own ethical statement and guidelines for prioritization are a good place to start. Here they are:
New York State based its COVID-19 vaccine distribution and administration process on ten guiding principles.
Informed by these guiding principles, each library can consider its unique policies, Safety Plan, and if relevant, collective bargaining agreement (union contract), and confirm its own internal method of prioritizing.
While these variables will make each library's position unique, the best way to confirm and follow the method of prioritization they decide on is to:
1) Adopt a written policy;
2) Document that it is being followed consistently;
3) Notify the employees and the public as to how the process will be implemented.
Here are an "example policy" and "example notice" drawn from the State's approach:
[**START EXAMPLE POLICY**]
[NAME] Library Vaccine Distribution Policy [Employees Only]
[**EXAMPLE ONLY**]
Policy
In step with the method of prioritization being applied by the State of New York, [NAME] Library's COVID-19 vaccine employee distribution plan will be based on "levels" that prioritize people at higher risk of exposure, illness and/or poor outcome.
Definitions and Levels
"Higher risk of illness and/or poor outcome" means that a medical condition makes it potentially more likely the employee could become ill, or, if they do become ill, are statistically more likely to experience a poor outcome; such need shall be considered "Level 1(d)."
"Higher risk of exposure" means those who, working within the parameters of the Library's current safety plan, PPE requirements, and operations:
Procedure for 1(d) requests
Any Level 1(d) requests for vaccination shall be confidential. When supplies are available to the Library, employees who self-identify as at "higher risk of illness and/or poor outcome" may request COVID vaccination through the same confidential process used to request and arrange disability accommodations, with the understanding that during this time of extra burden on medical providers, documentation of the condition creating the need may be supplied after vaccination (please supply a note from your physician when you are able).
A request for vaccination may be considered separately or together with accommodations based on disability.
Procedure
Any employee may request vaccination.
When supply and demand require prioritization, the order of priority shall be:
Levels 1 (any type): highest priority
Level 2 and with a member of their immediate household with higher risk of illness and/or poor outcome: second highest priority
Level 2: third highest priority
Level 3 and with a member of their immediate household with higher risk of illness and/or poor outcome: fourth highest priority
Level 3: fifth highest priority
All others: lowest level of priority
If further prioritization is required to prioritize between Level 1 employees, the order of priority shall be:
Level 1 (a/b)
Level 1(d)
Level 1 (any type) and with a member of their immediate household with higher risk of illness and/or poor outcome
Level 1
If an employee is selected for vaccination through the library, the employee will be expected to follow all the rules and procedures for vaccination.
Employees not selected will be placed on a wait list in order of priority.[2]
The Director, or their designee, shall be responsible for compliance with this policy.
[**END EXAMPLE POLICY**]
[**START EXAMPLE NOTICE**]
[NAME] Library Vaccine Opportunity Notice
[**EXAMPLE ONLY**]
DATE: [INSERT]
The Library has been issued # doses of COVID-19 vaccine. We expect to be able to initiate vaccinations on DATE.
As determined by the attached policy, the Library will be offering vaccination through our allotment to as many employees as possible.
Vaccination is voluntary.
Please transmit your interest in being vaccinated and your assessment as to the level of priority you fall into (see the policy) to name@address by DATE.
For example: "I am voluntarily requesting vaccination through the library's allotted doses. I believe my priority level is "1."
Requests that include medical disclosures will be treated confidentially.
If the library is able to grant your request, we will send you information regarding next steps, and you will be expected to follow all the rules and procedures for vaccination. Employees not selected will be placed on a wait list in order of priority.
Supplies are limited. If you have the opportunity to be vaccinated through another supplier, we encourage you to do so. Employees may use up to a day of sick leave for each vaccination session.[3] The library places the highest priority on the health of our employees.
[**END EXAMPLE NOTICE**]
Final notes from the lawyer:
These are early days for the vaccine and vaccination rollout. While being prepared with a policy is the right move, prior to announcing any prioritization, after adopting a policy, be ready to be flexible, since the situation is changing rapidly.
As with all major policies, this is one that ideally will be adopted via a vote by your board.[4] Here is a sample resolution for you:
BE IT RESOLVED, that after due consideration of the "guiding principles" of the State of New York and the library's own code of ethics, that the Library adopt the attached "Library Vaccine Distribution Policy" and "Notice;" and
BE IT FURTHER RESOLVED, that the [insert] committee shall work with the Director to monitor the need to revise this policy, based on any new guidance, knowledge, or operational needs.
I wish you good health, strength, and fortitude as we move into this next phase of overcoming the pandemic.
[1] This does not mean your library's (online) meetings about your rollout should have a cast of thousands—or even 5. A good approach is like a series of waves: a small core group of policy makers (director and one or two board members) reach out to the identified parties to alert them and get initial input, set a time to check in on a final draft, set a tight deadline for final input and final approval by the board. With the right planning, this can be done in 3-5 business days, and no one should be allowed to sandbag it.
[2] Care should be taken that any Level 1(d) designation is not set forth on a list that can be accessible per FOIL. Once created, a wait list should simply set forth the names or employee ID numbers in order of priority.
[3] Drafting note: for libraries that must follow the new sick leave law (Labor Law Section 196-b, effective in September 2020), time off for vaccination does qualify as sick leave. Libraries that regard themselves as being exempt government agencies, and thus not subject to 196-b, should check with their municipal attorney or HR professional to confirm if this meets the requirements for sick leave under municipal policies.
[4] While it is critical that a library board of trustees entrust the day-to-day management of the library to the director, policies are always ideally adopted at the level of highest accountability. This will also position a board to have a director's back if there is a legal or operational challenge to the vaccine distribution policy.
Tags: COVID-19, Emergency Response, Health Management, Public Health, Public Libraries, COVID-19 Vaccine, HIPAA, PTO, Vacation, and Leave
We are a private association library. There is a "difficult" patron who sits on a bench (almost everyday doing nothing but trying to talk to anyone nearby) which is immediately next to our front doors on library property. We are doing curbside pick-up so the staff places the library items immediately outside the front doors on a table. The patrons come to the table to pick them up. The "difficult" patron refuses to wear a mask no matter who asks and how many times he is asked. We recently found out that he was exposed to someone who has COVID. The police tried to offer a mask to this patron and he still refused. We were told to call the police if he returns. When he did, the police never came. This patron is a health hazard to the staff and our patrons. What else can we do?
***THIS ANSWER IS NOT FOR PUBLIC LIBRARIES***[1]
Here is what else you can do:
Any private association library currently[2] operating in the State of New York is required[3] to have a pandemic Safety Plan.
A library’s pandemic Safety Plan is not set in stone; it should be a living document that evolves as the library’s operations and our overall knowledge about COVID transmission change.
With that in mind, revising its Safety Plan to ensure the physical layout of its curbside operations could be a good solution to this member’s situation.[4]
Here are some possible revisions to accomplish this:
NOTE: As with any adoption or revision of a Safety Plan, to the greatest extent possible, check in with your local Department of Health (I appreciate that in some places, the Department of Health may be so overwhelmed that this "check-in" is impossible).
Since it is best to have your library board "on board" with the library's Safety Plan, and any changes to it, below is a proposed resolution for adopting such a change:[5]
BE IT RESOLVED, that to ensure the Library's Safety Plan is evolving as our information, operations, and needs evolve, the board adopts the attached [date] version of the Safety Plan, effective [date/immediately].
Now, all that said, I know there could still be a few hiccups (plans on paper often get shredded by reality). Here is the obvious “hiccup” I see, and a proposed way to address it:
If the "difficult" patron suddenly discovers that the bench they like to use and socialize from is suddenly not there/unavailable, and they have a strongly negative reaction—yelling abuse, or even being physically violent—that is when to call law enforcement, and of course to invoke your Code of Conduct and consider barring or suspending them from the library, as circumstances warrant.
But hopefully, with some modifications to the Safety Plan, and good communication of the changes, this concern can be resolved in a way that not only addresses this specific issue, but deters any other visitor who could pose such a threat.
Please let us know[6] if this approach proves effective.
[1] I trust public libraries know why this guidance is not for them, but since it is an important reason, I'll footnote it: adjustments to practices that can be demonstrably tied to a concern caused by one individual need to be carefully developed to ensure they cause no constitution-based due process or disparate treatment concerns. Basically, a public library can take the exact same measures I propose in here for this private association library, but must be even more cautious to ensure their actions are not—and cannot reasonably be perceived as—discriminatory or unfair.
[2] This answer is being composed on January 11, 2021.
[3] https://www.governor.ny.gov/news/no-20234-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
[4] Although the current Safety Plan templates posted on the NY Forward site set out a requirement of six feet, there is nothing saying that an established safety perimeter can't be more (I was at a hotel that used 15 feet, and gave us our room key-cards via a system that felt like I was at a drive-up teller).
[5] Per Education Law 226(2), the executive committee of your board may have the power to adopt this change without a full meeting, but CHECK YOUR ASSOCATION LIBRARY'S BYLAWS to make sure you can use this approach; if there is no executive committee, your library can follow its procedures for a special meeting or an e-mail vote of the full board.
[6] adams@losapllc.com (Stephanie "Cole" Adams) and jill@losapllc.com (paralegal Jill Aures), thanks.
Tags: Association Libraries, COVID-19, Emergency Response, Public Health, Safety, Safety Plan, Masks
The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:
"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."
As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law. According to the state comptroller's table summary of local government entities [https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".
However, in regards to page 33 of the State's Local Government handbook,
"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."
I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.
It's all a little confusing. Maybe you can help!
I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.
Why not? Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid. So answering this question requires a two-factor analysis:
Factor 1: Is the library in question considered a "type" of "governmental agency[1]?"
AND/OR
Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?
If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply. If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.
Now let's talk about the factors in this "two-factor test."
Factor 1: Is the library in question considered a "type" of "governmental agency?
Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 [2].
Sure, the library has to account for taxpayer money as required by the "General Municipal Law." And yes, it is subject to parts of the "Public Officers Law." And yep—it may even have to disclose certain records under the Freedom of Information Law.
But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from. Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.
Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....
Factor 2: "Compensated as if they were employees of a governmental agency"
How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"
In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees.
In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5], c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"[6] otherwise barred by rules requiring mandatory overtime. In short, under much of the Labor Law,[7] they are treated as municipal/district employees.[8]
So does my public library have to give employees sick leave under the new law, or what?
Sadly, there is no "bright-line" rule. But! I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:
|
Library-municipality Relationship Type
|
Hallmarks |
Legal impact with regard to employees and labor law |
What this means with regard to the new "Sick Leave" law ("196-b"). |
|
1. "Total Coupling" Type |
The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.
Ideally, the relationship is confirmed in writing. |
In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees. |
Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply. |
|
2. "Select support: determinative" Type |
The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.
Ideally, the relationship is confirmed in writing. |
In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways. |
IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply. Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.
|
|
3. "Select support: non-determinative" Type |
The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status. For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.
Ideally, the relationship is confirmed in writing. |
In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance. For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.
|
Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library). |
|
4. "Totally De-coupled" Type |
The library has completely separated functions from any sponsoring entity. The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.
No need to confirm the lack of relationship in writing, but you can exchange New Year's cards. |
In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers. |
Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library). |
And there you have it. From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way. Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law. If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.[10]
The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is. This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11] Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.
As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.
I want to say a big "THANK YOU" to Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question. He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law. Thanks again, Ben!
I hope this approach and chart come in handy for public libraries out there struggling with this question.
[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of.
[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."
[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee. If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.
[4] Or school district.
[5] Worker's compensation, unemployment, paid family leave, etc.
[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime. Only municipalities who are exempt from the Fair Labor Standards Act can do that. For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/59.
[7] Except the Taylor Law.
[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.
[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave.
[10] That said, this chart only considers the application of Labor Law 196-b. If it tackled everything, it would be...very, very long. For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.
[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.
[12] And another big thank-you for agreeing to be publicly thanked.
Tags: Employee Rights, , Public Libraries, Sick Leave, FOIA/FOIL, Health Management, Public Health, Records Management, PTO, Vacation, and Leave
New state guidelines list face shields as acceptable face coverings:
https://regs.health.ny.gov/volume-1a-title-10/content/section-66-32-face-coverings
However, people often spend quite a bit of time in the library, especially using our computers. We would like to require that they wear actual cloth (or paper surgical) face masks. Are we permitted to make our own safety rules? It seems to me, that just as we can prevent roller skating in the library, we should be able to set other safety rules for the sake of staff and patrons.
Thank you.
This question came into "Ask the Lawyer" with a request for a quick turnaround, so we'll keep this brief.
Are we permitted to make our own safety rules?
Yes...and no.[1] But that doesn't matter for this question, because the member's real objective is...
"We would like to require that they wear actual cloth (or paper surgical) face masks."
...which a library with a well-developed, uniformly applied Safety Plan can absolutely do.
Why is that?
As of this writing[2], there is documented evidence that the CDC is still weighing the advisability of face shields. Here is what they have to say:
(For the less cartoon-oriented[3], the CDC says it like this:)
Of course, at the same time, as the member points out, the State of New York now allows face shields to "count" as a face cover:
66-3.2 Face-Coverings....
(i) Face-coverings shall include, but are not limited to, cloth masks (e.g. homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields.
Meanwhile, the REALMS study has hit the library community with THIS cold cup of coffee[4]:
Libraries should be paying attention to all of these evolving resources[5], and should regard their Safety Plan as a "living document" that evolves with that information. This will help libraries develop a plan that can help them help patrons adhere to CDC guidelines like this one:
The bottom line? If your library bases its access and services on current information, is careful to adhere to its obligations under the ADA, and adheres to a Safety Plan that provides—based on the combined input from such reliable sources—that certain areas may only be accessed by those wearing faces masks (and/or gloves, and/or only if they agree to spray down certain surfaces, and/or only by a certain number of people a day), it may do so.
It all comes down to having a Safety Plan based on your library's unique size, design, staffing capacity, and collection materials. With a plan that is linked to established factors, the best guidance we can get in uncertain times, and reliable enforcement, anything is possible.[6]
Thanks for an insightful question!
[1] The answer to THIS question is about 15 pages and has 20 footnotes. Aren't you glad we found a way to make it snappier?
[2] October 16, 2020. CDC content found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html
[3] I am "cartoon-oriented." Whenever something can be conveyed effectively via icon or cartoon, it should be. Of course, as a lawyer, I experience no shortage of words.
[4] https://www.oclc.org/realm/faq.html. On a side note, how bad is my DIY mark-up of this content? It looks like I am trying to draw a squished amoeba.
[5] My "word of the day," which I learned as I researched this answer, is "fomite" (infected objects). Given what we've all had to deal with in 2020, I am sure I have seen the word before, but was too busy learning the concepts like "zoonotic" & "contact tracing" for it to sink in.
[6] Even wearing a masks while roller skating in a library (but I'd check that one out with your insurance carrier).
Tags: COVID-19, Emergency Response, Policy, Safety, Masks, Public Health
We got lucky: an employee, who was asymptomatic at work but tripped one of the screening factors requiring him to stay home, was tested and found NEGATIVE for COVID-19.
Our employee is coming back to work, but I have been wondering...what if the test came back POSITIVE? If we have to quarantine all our employees, we'd be shut down completely!
First: that is good news about your employee.
Second: a gold star to your library for having a screening system that works, and for following the requirement to restrict an employee who trips a screening factor from on-site work while waiting for test results.
Third: Let's talk about your alternate scenario (the one where you don't get such good news).
As of August 17, 2020, any library[1] that is up and running should have a Safety Plan as required by both the guidance for "Office-based Work", and "Retail Business Activities" (we'll call this the "Guidance").
The Guidance includes the requirement to fill out a New York Forward Business Affirmation Form, which attests to having a Safety Plan. It also answers the member’s question about what to do if an employee tests positive for COVID-19.
Here is what the Guidance (as of 8/18/2020) requires:
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.
Responsible Parties should remotely provide such individuals with information on healthcare and testing resources.
Responsible Parties must immediately notify the state and local health department about the case if test results are positive for COVID-19.
Responsible Parties should refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure”[2] regarding protocols and policies for employees seeking to return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19.
So, the answer to the member's question: "What if the test came back positive?" is: "[I]immediately notify the state and local health department."
After that, the direction from the local health department may vary, but the Guidance requires:
If an employee has had close or proximate contact[3] 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 after that, things can really vary. But in a scenario where every employee of the library came within six feet[4] of their (now confirmed as) infected co-worker, the library really could be looking at up to two weeks of employees in self-quarantine...along with any other response required by the local health department.
This is not a feel-good scenario. But the good news is, the same Guidance that requires a library[5] to require employees to isolate also reduces the likelihood of such a remedy being needed. This is because the Guidance also requires a host of preventative practices to limit exposure in the first place, including:
If a library maps these things out for employees, and consistently enforces them, there will be less need for the "isolation/quarantine" sections. While right now, there is no magic bullet, the simple elements of your library's Safety Plan can reduce the need for quarantine.
And that's it; thanks for a great question. I hope this answer never has to come in handy for your library. But just in case it does: here’s a quick checklist for the steps listed in this response [6]:
"CHECKLIST FOR RESPONDING TO NOTICE OF COVID-19 EXPOSURE AT THE LIBRARY; TO BE USED IN CONJUCTION WITH UPDATED SAFETY PLAN"
Here is a template notice to the board, designed to reflect taking the necessary steps, while also protecting employee privacy:
On ____________, the library received notification of an [individual/employee] testing positive for COVID-19. As required by current guidance from the State, we notified the Health Department immediately. At this time, the direction from the local health department is _____________________________________[this may be extensive].
We have determined that # employees must self-isolate until they DATE.
We have determined that # employees must self-quarantine until DATE.
We have confirmed with the health department that as a result of this notice and response, and consultation with the [Executive Committee of the board/full board/board officer/other] we will [close/reduce operations/operate under the status quo], unless the board determines otherwise.
Our Safety Plan has been followed and we have retained the documentation showing such compliance.
[1] Any library that does not consider itself "operated by a local government or political subdivision", that is, since the New York Forward guidance specifically states that the various Executive Orders' business restrictions do not apply to such libraries.
[2] Found at this link as of 8/17/2020: https://coronavirus.health.ny.gov/system/files/documents/2020/06/doh_covid19_publicprivateemployeereturntowork_053120.pdf
[3] According to the Guidance, "close contact" is "to be someone who was within 6 feet of an infected person for at least 10 minutes starting from 48 hours before illness onset until the time the person was isolated."
[4] This should NOT be happening!
[5] Remember, local governments and political subdivisions may decide not to follow these precise requirements. That said, if it determines it is operated by a local government or political subdivision, a library must then follow the safety plan set by that local government or political subdivision.
[6] Some of this isn't required by applicable laws or Guidance, but is in there to position a library to easily show it followed applicable laws and Guidance.
[7] While keeping confidentiality at top of mind, libraries need to think carefully about a voluntary system allowing users to log visits for purposes of contact tracing. A voluntary list of names, dates and times, maintained with all due care for privacy, can position a library to participate in a local health department's contact tracing initiative. This can in turn help a community reduce its rate of transmission.
Tags: COVID-19, Emergency Response, Policy, Quarantine Leave, Safety, Public Health, Safety Plan
In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask customers to leave the public building if they are exhibiting any visible COVID symptoms? If so, are there benchmarks for how extreme symptoms should be or how policies should be worded? There are of course patron behavior policies in place allowing for the removal of anything disruptive, which can include noise or inappropriate behavior. There are some members of our leadership team who believe our safety reopening plan should include provision specifically mentioning symptoms of COVID-19 and the staff's/ library's right to remove them if symptoms are exhibited. There are other concerns that library staff are not medical professionals and we are not able to determine if a few sneezes and coughs are common colds, allergies or COVID. Attached is our library's current reopening plan.
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:
[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.
[1] This answer does not apply to employees and visitors like contractors, who must be screened.
[2] Found as of July 25th, 2020 at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/RetailMasterGuidance.pdf
[3] Found as of July 25th, 2020 at https://coronavirus.health.ny.gov/system/files/documents/2020/06/doh_covid19_publicprivateemployeereturntowork_053120.pdf
[4] I note that the DOH's "Interim Guidelines" do not include guidance to staff with suspected (as opposed to confirmed) exposure. If an employee feels they were exposed to a suspected case of COVID-19, however, that will impact their answers on their next daily screening, which will trip consideration of whether they can report to work.
[5] Or whatever other safety measures a library has identified. It is inspiring to read the variety of tactics out there, as listed at https://www.nyla.org/covid-19-library-reopening-plan-database/?menukey=nyla.
[6] Another member raised this consideration in this "Ask the Lawyer" from earlier in July 2020: https://www.wnylrc.org/ask-the-lawyer/raqs/153
[7] Of course, if a patron is having a medical event and you have an immediate concern for their well-being, call 911.
Tags: ADA, COVID-19, Emergency Response, Policy, Privacy, Reopening policies, Work From Home, Public Health, Safety Plan
Our library has taken the next step in re-opening and is welcoming the public back into our building. We have a Safety Plan, and we have posted signage in key areas to help the public follow our safety practices, including staying at least six feet apart whenever possible, and every visitor using hand sanitizer upon entry and (if over the age of two) wearing face coverings at all times.
A patron who cannot wear a mask raised the possibility of our policy being a violation of the Americans With Disabilities Act (ADA). They patron is concerned that this policy discriminates against those who cannot “medically tolerate” a mask.
Are we in the wrong to require masks?
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:
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.
[1] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html#evidence-effectiveness
[2] https://www.webjunction.org/content/dam/WebJunction/Documents/webJunction/realm/systematic-lit-review.pdf
[4] I really tried to come up with a sassy acronym for this. The best I could do, even after 2 cups of coffee, was “MAP” for “Masking All Patrons.” That sounds AWFUL so “PMEL” it is.
[5] I won’t lie. I didn’t try to come up with a better phrase than “Wipe Down Reading Area.” But I am sure someone out there will.
[6] https://www.wnylrc.org/ask-the-lawyer/raqs/65 Yes, this is one of the documents to have in the work packet.
[7] Bearing in mind that different libraries will have different requirements.
[8] NOTE: While this Executive Order does not mention the other requirements a business can make a condition of entry, since a library can make adherence to its Safety Plan a condition of the standing Patron Code of Conduct, if a library so chooses, it has more than just the Order to address concerns (this also assures all appropriate due process). See https://www.wnylrc.org/ask-the-lawyer/raqs/138 for a discussion of how to enfold your Safety Plan into your Code of Conduct.
Tags: Accessibility, ADA, COVID-19, Emergency Response, Reopening policies, Masks, Public Health, Safety Plan
Can a library prevent someone from coming into the library if they refuse to wear a mask? I know that library behavior policies would need to be broadened to include mask-wearing. Are libraries required to provide a mask for the public - and what if a person wears the mask improperly - can they be asked to leave?
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):
The [Insert] Library is committed to serving its community during hard times and good.
The year 2020 has brought unprecedented challenges to our nation, state, and area of service.
To continue serving our patrons during this difficult time, while placing the health and safety of our community at the forefront, the Library Board of Trustees has adopted the below Temporary Safety Practices Policy.
The safety measures in this policy have been confirmed with the [Insert] County Health Department.
The board’s authority to adopt these measures is found in our charter, bylaws, New York Education Law Sections 255, 260, 226, 8 NYCRR 90.2, and Article 2 of the Not-for-profit corporation law. We also consider it our duty to develop these measures to keep our services accessible at this time.
Staff at the [Insert] Library have the authority to enforce these measures like any other of the Library’s Rules. Concerns about this policy should be directed to [Insert name]. Thank you for honoring these measures, which are designed to keep our community safe, while allowing access to the library.
[Insert Library] Temporary Safety Practices
Scope of Temporary Safety Measures
The [Insert] Library operates per relevant law and Executive Orders, including those pertaining to mandatory workforce reductions. Therefore, the temporary practices in this Policy may be further modified as needed to conform with relevant Orders.
Activities
Until the board votes to revoke this temporary policy, only the following routine activities may be performed on site at the library:
[list activities]
Safety Practices
Until the board votes to revoke this temporary policy, the library will require all people on the premises to abide by the following safety practices:
[based on activities and confirmed safety practices, including but not limited to use of particular PPE, insert]
ADA
In the event any safety requirement is not practicable on the basis of a disability, please contact [Insert name] to explore a reasonable accommodation.
Communication
To aid the community in honoring these requirements, the Library will transmit this policy through social media, and use a variety of health authority-approved, age-appropriate, multi-lingual and visual means to transmit this message in a manner consistent with our mission and our identity as a welcoming and accessible resource to the community.
Code of Conduct
Adherence to these practices shall be enforced as a requirement of the Library’s Code of Conduct until such time as this temporary policy is revoked.
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.
[1] Whatever your library decides should be consistent with its analysis in any decision to apply for the Paycheck Protection Program, or other aid.
[2] Of course—especially as the mother of a Type1 diabetic and Gen Xer with parents almost 80[2]— as a finishing place, I like a world where we no longer need to socially distance, maniacally sterilize, and use PPE…but we don’t know when we’ll get that world.
[3] I like writing guidance for libraries because at a certain point, you can assume they know how to find the type of resources one is describing. It’s like telling a lawyer that something is in the penal law—I assume they can just find what I’m talking about.
[4] Citation: 958 F2d 1242 [3d Cir 1992]
[5] A recent good example of how First Amendment tests can turn on precise circumstances can be seen in Wagner v Harpstead, 2019 US Dist LEXIS 220357 [D Minn Nov. 12, 2019, No. 18-cv-3429].
[6] This First Amendment concern is less critical for association libraries, but since such libraries also have a vested interest in maximizing access to their areas of service, it’s a good exercise for them, too.
[7] I do run on, I know. Occupational hazard.
[8] Here is a good resource for ADA and COVID-19: https://askjan.org/blogs/jan/2020/03/the-ada-and-managing-reasonable-accommodation-requests-from-employees-with-disabilities-in-response-to-covid-19.cfm
Tags: ADA, COVID-19, Emergency Response, Policy, Masks, Public Health
Our library is considering adding a circulating telehealth kit to our collection for patron use. With the pandemic and telemedicine being the current norm, the goal is to fill a perceived need within our community. The proposed kit would include medical supplies including a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment. My question concerns any disclaimers that would be necessary to add to the kit as well as liability issues for the library if we were to implement this.
I love learning about new assets communities can access through their library. Tools, ties, seeds, toys…this list is endless.
This is the first question “Ask the Lawyer” has received about health monitoring devices and medical supplies, and the member has rightly pointed out that there is a lot to consider in such a venture. How can such lending be done with an emphasis on safety, and limiting legal risk for a library?
But before we delve into disclaimers and liability (yes, a disclaimer is going to be needed), let’s confirm some terminology.
In New York, Telehealth is defined[1] as “the use of electronic information and communication technologies to deliver health care to patients at a distance.”
Meanwhile, Telemedicine is defined[2] as “two-way electronic audio-visual communications to deliver clinical health care services to a patient at an originating site by a telehealth provider located at a distant site.”
In other words, Telemedicine is also Telehealth--but Telehealth is more than Telemedicine. “Telehealth” is like the largest figure in a Russian nesting doll set, with Telemedicine (audio-visual communication of services) contained within—but separate.
The equipment being considered by the member are equipment for Telehealth, not the transmission of Telemedicine. This has a lot of ramifications for liability and legal compliance, so it is important to take care in making the distinction from the start.
When considering the cataloging and lending of equipment for Telehealth, there are two other critical terms:
Store-and-Forward Technology, which is defined[3] as “asynchronous, electronic transmission of a member's health information in the form of patient-specific pre-recorded videos and/or digital images from a provider at an originating site to a telehealth provider at a distant site.”
…and…
Remote Patient Monitoring, which is defined[4] as “the use of digital technologies to collect medical data and other personal health information from members in one location and electronically transmit that information securely to health care providers in a different location for assessment and recommendations.”
“RMP,” as it is also called, includes the collection of information such as vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings; the type of monitoring the devices in the member’s question are about.
Okay, with that established…
YES, in lending such equipment, there are some concerns about risk and liability. YES, a disclaimer is a good idea. And there are a few other considerations, too…related to procurement, cataloging, and lending (but in the end, all relevant to the issues of risk and liability).
How does a library address those considerations? There are many details, but here is a process to systematically take them on:
Step One: Make it incremental
What do I mean by “incremental?”
I mean, instead of cataloging a kit of equipment as a single item, each item in the kit (and perhaps the bag itself) should be cataloged as a separate item. That way, when the patron borrows the bag and the equipment, they will borrow them as separate components…the way another patron might check out the entire “Harry Potter” series and a DVD of “Goblet of Fire.” [5]
Why? Because each piece of health-related or medical equipment comes with its own set of legal terms (warrantees, disclaimers) and operating instructions. By lending that equipment on a piece-by-piece basis, rather than in kits with multiple components checked out as a single unit, a library will be able to use that level of detail to take the liability-limiting and risk management steps I describe below.
Step Two: Know the devices
The member’s question lists the following telehealth equipment: “…a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment.”
This list makes sense, since “remote patient monitoring,” as described by the New York Department of Health,[6] uses instruments to measure vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings, so that information can be used to provide telemedicine.
How can a library “know” the equipment? Before a Telehealth device is added to a catalog, a library should a) confirm it is commonly used for telehealth, b) confirm it meets your library’s procurement requirements; c) confirm that the precise device is registered with the FDA, and d) use the FDA site to confirm it has not been recalled.
The best place to do this is: https://accessgudid.nlm.nih.gov/.
Step Three: Plan to include the instructions
If the device comes with instructions, ensure the physical copy of the instructions is lent along with the device,[7] and generate a link or QR code so the instructions (in an ADA accessible format) can easily be found online.
This is so the borrower is empowered to use the device per the manufacturer’s instructions. This is a key component of limiting the risks associated with lending devices of any kind—including health-related equipment.
Step Four: Set the Requirements for procurement
In addition to the Procurement Policy your library must follow, the following requirements should be in the RFP or RFQ for each device:
Step Five: Be ready to continuously monitor for recall
This is critical—and why any device included in the collection should be registered with the FDA. Prior to lending (every time), it should be confirmed at https://accessgudid.nlm.nih.gov/ that the device has not been recalled by the FDA.
Step Six: Confirm Functionality after Every Return
This, too, is critical. Prior to lending (every time), it should be confirmed that the device is functioning properly, as described by the product’s instructions.
Step Seven: Consider bringing in a ringer
Prior to making the equipment ready for lending, consider launching the collection in connection with a public health partner in your community.
Why?
The ability to borrow a thermometer, or a blood pressure cuff, or pulse oximeter, could be a game-changer if a person’s own equipment is stolen, damaged, or lost.[8] For people in rural areas who must order equipment and wait for delivery, it could facilitate the immediate start of Telehealth care, or ensure continuity of care while a replacement is on its way. This project you are considering could save lives.
That said, people should only use telehealth equipment in connection with ongoing care from their health care provider.
I am well aware of the cruel irony in this caveat. Not all people have access to reliable health insurance or ongoing healthcare,[9] and thus might need to DIY their care with telehealth devices. But the concept of telehealth ONLY works if it is in conjunction with a health care provider.
No one should be borrowing a library’s telehealth resources to use them in a health care vacuum.
This is where a public health partner could come in. If the equipment is linked to information about a clinic or other local health care provider in your region who can help a patron connect to care, you can mitigate this risk, and urge the proper use of Telehealth equipment, while respecting the privacy and autonomy of patrons.
This awareness should be part of your disclaimer.
Step Eight: Yes, you should include a disclaimer
…and it is on a device-by-device basis.
Of course, any disclaimer should only be adopted after review by your library’s attorney AND insurance carrier.[10] But here is a place for them to start:
“Prior to being borrowed, this equipment has been confirmed as not under recall by the United State Food and Drug Administration (“FDA”), and to be functioning per the manufacturer’s specifications.
However, the [NAME] library cannot confirm that the equipment will remain functional or unrecalled while it is on loan. To determine proper functioning, please refer to the instructions, and check the recall status of the device at at https://accessgudid.nlm.nih.gov/.
This is borrowed equipment. You must follow the cleaning directions in the instructions before using this equipment.
Please review the instructions and notify the library immediately at (#####) in the event the equipment is not functioning as the instructions describe.
Use of this equipment should only be in conjunction with service from a licensed health care provider familiar with your medical needs.
In the event you do not have access to a licensed health care provider, call [community health partner] to inquire about health care in the [NAME] region. The library has confirmed that this resource can assist you in finding care.
In the event of a medical emergency, dial 911.”
Step Nine: (If You have Room) Let them Know Their Rights
In the State of New York, patients being treated through telemedicine have certain legal rights. [11] If feasible, it would be good to foster awareness of these legal rights when lending telehealth equipment.
Here is a sample notification:
This equipment is for temporary use when being treated via Telehealth. It should only be used in connection with service from your health care provider.
If you are being treated by telehealth in New York, here are your rights:
Any practitioner starting a course of telemedicine should provide a patient with basic information about the services that they will be receiving via telehealth, and obtain their consent to participate in services utilizing this technology.
Telehealth sessions/services may not be recorded without the member's consent.
Patients have the right to refuse to participate in services delivered via telehealth and must be made aware of alternatives and potential drawbacks of participating in a telehealth visit versus a face-to-face visit.
Patients must be informed and made aware of the role of the practitioner at the distant site, as well as qualified professional staff at the originating site who are going to be responsible for follow-up or ongoing care.
Patients must be informed and made aware of the location of the distant site and all questions regarding the equipment, the technology, etc., are addressed.
Patients have the right to have appropriately trained staff immediately available to them while receiving the telehealth service to attend to emergencies or other needs.
Patients have the right to be informed of all parties who will be present at each end of the telehealth transmission.
Patients have the right to select another provider and be notified that by selecting another provider, there could be a delay in service and the potential need to travel for a face-to-face visit.
Step 10: Plan and budget to clean the Equipment Upon Return
However the instructions state the equipment should be cleaned, it must be cleaned (every time). Developing a protocol to do this safety is something your library must consider during both procurement and budgeting for the staff time needed to lend and maintain the equipment.
And that’s it!
Okay..I admit “it” is “a lot.” The big take-away here is that, in addition to considering liability concerns and a disclaimer, your library must ensure it has the staff, storage, and maintenance capacity to engage in appropriate risk management. That will take some planning, and some resources beyond simply buying the equipment.
That said, I suspect it will be worth it.[12]
I hope a worthy initiative like this can find a strong community health partner in the member’s region. With a health care supporting your staff in selecting the right equipment, choosing the best brands, and pushing out information about patient rights and public health, this program could truly save lives.
Please let me know how it goes.[13]
[1] NYS Public Health Law § 4406-g (2).
[2] NY CLS Pub Health § 2805-u 1.(d).
[3] NYS Public Health Law § 2999-cc, 6. PLEASE NOTE: if your library is considering providing equipment to assist with “store-and-forward” a rigorous ethics, security, and HIPAA compliance check should be part of procurement.
[4] NYS Public Health Law § 2999-cc, 7.
[5] In Harry Potter, they practiced telemedicine via the Floo Network. (P.S. If you think I threw in this Harry Potter reference to enliven a dull list of footnoted citations, you are right!).
[6] As found on April 14, 2020, at https://health.ny.gov/health_care/medicaid/program/update/2019/2019-02_speced.htm#definition
[7] I appreciate that this may involve the use of a laminator or other cool process libraries use to unnaturally extend the life of print media. Wait until you see Step Ten.
[8] Or if the patron is in a coverage dispute with their carrier. I have had some experience with this; not fun.
[10] Your carrier should also be apprised of the undertaking, in general. They may even have some helpful tips for you in developing the lending program.
[11] As set forth in the NYSDOH guidance document found on April 14, 2020, at https://health.ny.gov/health_care/medicaid/program/update/2019/2019-02_speced.htm#definition, with citations to relevant laws and regulations.
[12] As I write this, the state is still on “PAUSE” due to COVID-19. The use of telehealth during the time has SOARED. And reading projections for the future, it will only increase.
[13] Adams@stephaniecoleadams.com or call at (716) 464-3386.
Tags: COVID-19, Disclaimers, Emergency Response, Public Health, Telehealth, Collection Management, Library of Things
