How does the NY HERO Act https://dol.ny.gov/ny-hero-act apply to the different types of libraries? Are Association Libraries included?
The letters in the "NY HERO Act" stand for "Health and Essential Rights."
What "essential rights" does it protect?
The new laws are activated only when an "infectious disease" is declared by the NY Commissioner of Health. This means that right now, while the law is in effect, but no disease is designated, there is no need to have an active plan...but entities have to be ready to spring into action.
Which brings us to the question: What types of libraries must comply?
We'll tackle the easy part first: without question, association libraries, which are private education corporations, must comply.
For non-association libraries ("public" libraries), the language of the Act is much less clear, since the Act specifically exempts "...the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."
That sounds simple, right? They should be exempt. After all, libraries are considered, in some contexts, nigh-governmental entities.
But as many know, a public library's status as "governmental" ebbs and flows.
Here are just two recent examples:
Example #1: 2020 brought an interesting development when, after months of anxious curiosity, the NY Forward "powers that be" confirmed that public libraries were always considered to be exempt from the Executive Orders shutting down private businesses (and instead, were to follow the mandates governing local municipalities). So: a governmental entity.
Example #2: A noteworthy new case from NY's second-highest court has found that for purposes of the Prevailing Wage Act (Section 230 of the NY Labor Law), a public library is NOT "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education." In other works: not a governmental entity.
So, when it comes to this new law, I can't point to any definite authority either way; just because one part of the Labor Law excludes libraries, doesn't mean another does. And certainly, we have no case law yet. That said, if I HAD to pick, I would err on the side of caution and say that public libraries, which are education corporations with their own governance structures (just as the Court commented in "Executive Cleaning"), have to comply with the HERO Act.
Since the stakes are high for non-compliance, any public library that decides the HERO Act doesn't apply to them (and that's fine to reach a different conclusion; I am not omniscient, nor do I have a crystal ball) should:
1) Get that opinion, in writing, from an attorney retained to give advice to that library specifically, and considering its unique position under the law;
2) Confirm the library is in compliance with New York Labor Law 27-a, which covers workplace safety in "the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof."
The bottom line on this: when it comes to occupational safety, a public library can't fall into a hole between the mandates governing public and private entities: it either has to follow the rules of a "governmental instrumentality" employing people as government employees (and giving them all the protections government employees get under the law) OR it is following the rules of a private education corporation (and giving them all the protections private employees get under the law).
Since the HERO Act is really about taking all the protocols the State of New York developed in response to COVID, and ensuring they are on hand and ready for the next pandemic, a library can't go wrong by having "an exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the department of labor, and the department of health." By making a clear decision about what safety rules apply to your library, and developing a plan to follow them, you can not only comply with the law, but show that the library is working to keep employees safe.
Thank you for an important question.
 What about the "O?" I double-checked the bills in both the State Senate and Assembly and apparently, it's just a bonus letter (I guess the "HER" act would imply only women get clean air).
 The NYS Department of Labor, as of July 12, 2021, states: "Currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect."
 (Matter of Exec. Cleaning Servs. Corp. v NY State Dept. of Labor, 193 AD3d 13 [3d Dept 2021])
 Contrast this with the definition of who’s in/excluded from the HERO Act: "'Employer' shall mean any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual in any occupation, industry, trade, business, or service. The term shall not include the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."
 I know, my stomach turned a bit when I typed the phrase "next pandemic." But no point putting our heads in the sand.
 From the requirements summarized in the NYS Department of Health guidance here: https://dol.ny.gov/system/files/documents/2021/07/p764-the-airborne-infectious-disease-exposure-prevention-standard-v4.pdf.
We had a patron come in this past week who said that he couldn't see well and also couldn't type or use a mouse, but he needed to certify Unemployment Insurance. He asked the staff member to login with his username and password and do this for him, and the staff member was, understandably, uncomfortable doing it.
I feel like patrons who divulge their personal data to us are doing it of their own accord and our privacy responsibility is to not share that information with others without the consent of the patron.
In this particular case, the patron was offering his information and consenting for us to enter it for him. As such, I don't think this violates any privacy agreement we have made as employees of the library.
The part that I worry about is, could this come back on an employee if they are doing a legal filing for a patron and the filing may be fraudulent? I am optimistic by nature and like to think people have good intentions, but the reality is, I know this happens. I wouldn't want to put an employee in a sticky legal position if they filed what might turn out to be a fraudulent claim for someone.
Do you know of similar situations in other libraries and what, if any, legal ramifications there might be for employees who could be caught in the middle of something like this?
At first glance, this question seems simple: what are the possible legal risks to a librarian helping a patron fill out a legal document?
But within this question lies another, slightly more complex issue: when does good customer service become an accommodation for a disability?
This "slightly more complex" consideration is brought up by this part of the member's scenario: "We had a patron come in this past week who said that he couldn't see well...", potentially meaning: the patron could not access the library services (use of the computer and internet) without assistance, because of a disability.
Of course, not every visual limit is a bona fide disability (I have to take off my glasses to read these days, but that does not entitle me, by law, to an accommodation under the ADA). However, a patron requesting help to access a library service due to "low vision" (meaning that patron cannot view the screen even with corrective lenses), is potentially requesting an accommodation.
This is because "low vision" can be "a physical or mental impairment that substantially limits one or more major life activities," (which is the ADA's definition of a disability).
For patrons with "low vision," an ADA accommodation can take many forms aside from a human-powered solution, including:
What accommodations a library chooses to offer to someone needing an accommodation to access library services will vary based on that library's size, type, served population, and (of course) budget.  For some libraries, the "human solution" will be the only one available...which creates dilemmas like the one shown in the member's question.
Okay, let's press "pause" on the ADA aspect (we'll come back to it) and return to the original, simple question: what are the possible legal risks of a librarian helping a patron fill out a legal document?
The risks, of course, are that if the patron is accused of fraud, identity theft, or any other illegal activity based on the form's contents, it could lead to complications for the library (and thus, potentially, the employee).
Of course, most types of crimes based on fraud, false personation, and identity theft turn on the awareness and intent of the involved parties. Basically--and this is a big paraphrase--so long as a person can show they had no awareness or intent to help with a crime, they will have a defense against such an accusation...especially if they are performing the action as part of a duty in their job description.
But how can a library avoid such accusations against its employees in the first place? This is where we take the ADA aspect off "pause," and consider how a library's policies can set firm boundaries for good customer service, while also facilitating accommodations for disability.
How is that done? Many libraries already have a version of this approach, but here's my plain-language version of a policy:
Library employees are here to help patrons use library resources, but librarians and library staff may not interpret, provide guidance, or fill in forms for patrons.
Patrons who need assistance filling in a form or completing a document due to uncertainty about the content are welcome to ask librarians for help locating the instructions or contact information for assistance.
Patrons who need assistance filling in a form or completing a document on the library's computer or other resource as an accommodation for a disability, please alert the Director or [insert alternate, accessible means], so the Library may act on the request per the library's ADA policy.
So, to be clear, my answer to the member's overall question is: to avoid doubt, librarians should never help patrons fill out the answers on legal forms if the help is just part of good customer service. HOWEVER, librarians absolutely can read the content and type substantive answers on a patron's legal forms if the library decides (and documents) that it is providing the assistance as part of a reasonable accommodation for a disability.
When considering employee-powered assistance as a form of accommodation, part of evaluating the request must be consideration of how it can be fulfilled ethically. For instance, a person providing an ADA accommodation as an ASL Interpreter must follow the Registry of Interpreters' Code of Ethics (or other professional association). A person providing an ADA accommodation as a "reader" for a person who is blind or has low vision should not offer guidance or commentary on the content--their role is limited to reading, and perhaps typing, based on verbal prompts from the accommodated party. A person typing because the library's only keyboard is inaccessible to the patron and the library has no dictation software should similarly only type as an accommodation, and not offer comment or guidance. 
Some libraries, looking at the range and requirements for certain types of human-powered accommodations, may decide they do not have the staff capacity to provide such resources. Others will say (and support by well-developed policy): sure, we can do that, here's how.
The important thing, no matter what the decision is, is to keep a record as to why a library employee (or contractor) would assist a patron with filling out and/or submitting a confidential or legal document. Since the only reason should be as an accommodation, that reason should be documented in either the policy (for instance, if the library has a standard service) or as an ad hoc request.
Thank you for a very compassionate and thoughtful question.
 Many thanks as always to the "AskJAN.org" web site, which lists common disabilities and their accommodations, including the definition and accommodations for "low vision," found here as of June 28,2021: https://askjan.org/disabilities/Low-Vision.cfm.
 "Ask the Lawyer" has addressed the various types of libraries’ obligations under the ADA in other answers, such as https://www.wnylrc.org/ask-the-lawyer/raqs/65 and https://www.wnylrc.org/ask-the-lawyer/raqs/142.
 Assistance printing, formatting, duplicating, locating a hyperlink, and in general using library technology in furtherance of completing the form is okay.
 Found at https://rid.org/ethics/code-of-professional-conduct/. Are there any libraries with in-house ASL interpreters? That would be cool.
 The National Foundation for the Blind has a helpful article on this here: https://nfb.org//sites/default/files/images/nfb/publications/fr/fr35/1/fr350105.htm.
 This is why consideration of ADA access is so critical in procurement of library resources. As you will see on most ADA-resource sites (like AskJAN.org), most accommodations these days are powered by technology. Although some still rely on human action (for instance, reading aloud), most do not. A library that factors these needs into procurement decisions (buying larger screens, or adaptable keyboards) will not only model a practical commitment to ensuring access, but will reduce the need for employees to be the mode of accommodation--lowering the risk of viewing and contributing to the completion and submission of confidential/legal documents.
Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings? We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing? If some of them are not vaccinated, do we required all the trustees to wear masks? Do we provide physical distancing for the ones who are not fully vaccinated? I would like to host a staff luncheon ( I understand that is now allowable) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?
This question comes at a very challenging time.
The question is difficult because right now, the World Health Organization is looking at the "Delta Variant" of COVID-19 and telling the world to consider continuing to use masks and social distancing while inside.
New York, of course, after a 6-day scramble, started following the Center for Disease Control's May 13 "surprise" guidelines stating that vaccinated people no longer need to wear masks or social distance indoors. And as of July 1, 2021, the state announced that almost all COVID-related restrictions were lifted.
Where does this leave us?
Throughout the Pandemic, when asked about how to interpret and follow law, regulations, and Executive Orders governing the state's COVID response, my watchword has been: "Safety first."
After that, I have listed what is required at that point in time, and then referred libraries and cultural institutions to resources about how they can develop a Safety Plan crafted to suit their unique identity (by "unique identity" I mean things like a large library with outdated HVAC and windows that don't open, has different considerations than a small library with assurance of constant fresh air).
With so much uncertainly at this time, my tired playbook is getting tested. But I'll use it to try and answer each of the member's questions:
Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings?
If your (now optional, but if the board keeps it in place, enforceable) Safety Plan still requires physical distancing, then yes.
We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing?
If your Safety Plan has opted to continue using the NYS May 19th guidance, and the meeting is not exceeding the occupancy threshold, no, you do not. HOWEVER, there is nothing to stop the board from deciding that, in the interest of safety and enabling each trustee to take whatever steps they need to feel safe, they are going to allow some trustees to attend from a remote location.
If some of them are not vaccinated, do we required all the trustees to wear masks?
The WHO would (currently) say: yes.
The CDC and the State of NY would (currently) say: no.
For what it's worth, I tend to follow the most cautious reputable source at any given time (so would say: there is ample ground for your Safety Plan to require this, while there is also ample ground for your board to revise the Safety Plan to require only the bare minimum of advised precautions).
Do we provide physical distancing for the ones who are not fully vaccinated?
If that is at all possible, I strongly support that idea. Being able to show an institution took the time to consider the best way to keep its community safe is good from any angle: mission, legal compliance, and employee/community relations.
I would like to host a staff luncheon (I understand that is now allowable) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?
It pains me to say it, but sometimes, the law is not the best guide as to what to do! Legally, if your library is still using the May 19th NYS Guidance, your Safety Plan can allow for this to happen, if you follow the required prescriptions.
However, it makes sense to me to "read the room" and see if such a luncheon would be a team-building exercise, or (because some employees might not feel at ease eating in close proximity to others) risk bad feelings and alienation. If everyone cannot attend with the same level of comfort, it might be better to come up with an alternate bonding exercise.
I truly wish I could offer more definite guidance. The truth is, libraries--even with the return to the strict requirements of the Open Meetings Law--have many options for how to proceed. So as tired as it may sound, put "safety first," and all things will follow from there.
Since the Powers That Be out there move quickly, here are some snapshots of the current guidance I am referencing in this answer.
Snapshot of the current WHO Guidance:
Snapshot of NY's July 1 announcement:
Snapshot of New York's May 19th Guidance (now largely optional):
Snapshot of current (June 10) OSHA guidance:
 Has any date since March of 2020 not been in a "challenging time?" I have a dim recollection of July of 2020 being semi-okay.
 Whether they were required to have one, or opted to have one.
 As of July 2, 2021, at 11:30 AM. Go ahead, WHO, hit me with a change-up, I can take it.
 As of July 2, 2021, at 11:30 AM. Go ahead, CDC and NY Department of Health, hit me with a change-up, I can take it just as well as I could at 11:30!
 This answer is complicated enough, I am not going to tackle the fiscal considerations of hosting events for staff! See 1990 Comptroller Opinion #144 (May 15, 1990)
 This part might be a better question for the "Ask the HR Expert" service, since my idea of bonding is listening to Supreme Court Oral argument while providing color commentary (this is why my paralegal plans our events).
First question: With the expiration of the Executive Orders on June 24th, 2021, including the Order modifying the requirements of the Open Meetings Law, are libraries back to the "old way" of conducting trustee meetings?
Follow-up question: If the answer to the first question is "yes," does this mean that trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?
First question: Yes...with the expiration of the Executive Orders on June 24th, including the Order modifying the Open Meetings law, things are "back to normal."
Or, as the Committee on Open Government, the authority on the State's Open Meetings Law (OML), put it:
So, does this mean "trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?"
Various case law and commentary about the OML has confirmed that when a public body needs to meet via teleconference, the public must be able to attend from any remote location "calling in" to the meeting, and that location should be part of the meeting notice.
Or, as the COOG put it in Advisory Opinion 5535 in 2018:
"So long as the public is permitted to attend at any location at which a member participates and can observe the members wherever they may be, I believe that the members may participate and be counted for purposes of attaining a quorum and for voting, and that a meeting may validly be held." [emphasis added]
For large public bodies such as the Regents, the New York Power Authority, and other entities that must hold publicly accessible meetings, and whose board members may reside in far-flung areas of the state, the use of publicly accessible call-in sites comes with an IT team and a budget.
For a public library, whose members generally reside within that library's area of service, this "back to normal" pretty much means that you're back to meetings in person.
Of course, under the Not-for-Profit Corporation law (which, along with the Education Law, governs the conduct of library meetings), a library board of trustees is allowed to conduct meetings telephonically. When coupled with the requirements of the OML, however, that latitude is severely reigned in--since whatever space is used for the remote call-in must be accessible to the public, and included in the notice.
For this reason, unless a library trustee is very comfortable inviting the public into their home, I advise against using the "dial in from home" option.
NOTE: This answer does not consider if a trustee needs to attend remotely due to it being an accommodation under the ADA. That is a separate and critical question; for now, I'll simply say that adherence to the OML should not rule out consideration of ADA issues.
The transparency created by Education Law 260-a's requirement that public libraries abide by the Open Meetings Law is laudable--but is also based on older notions of technology. Now that the State of New York has lived under different rules for over a year, we might see some changes in legislation.
But for now, we're "back to normal."
I hope this is helpful.
 Allowing them to be held via teleconference so long as the meeting is accessible to the public, recorded, and transcribed. For more comments on this, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/120 and https://www.wnylrc.org/ask-the-lawyer/raqs/185.
 See NFPCL Section 708(c) "Unless otherwise restricted by the certificate of incorporation or the by-laws, any one or more members of the board or of any committee thereof who is not physically present at a meeting of the board or a committee may participate by means of a conference telephone or similar communications equipment or by electronic video screen communication. Participation by such means shall constitute presence in person at a meeting as long as all persons participating in the meeting can hear each other at the same time and each director can participate in all matters before the board, including, without limitation, the ability to propose, object to, and vote upon a specific action to be taken by the board or committee."
 I recently saw a very good presentation on parliamentary procedure for library boards. The presenter commented that disclosure of home addresses should not be made, due to safety concerns. I absolutely agree with that caution, but must emphasize that if a trustee calls in from a remote location, with the emergency modification of the law over, the OML requires that all "locations" of the meeting (including a remote call-in site) must be disclosed.
A taskforce at the college is wanting to use a recent song and video on Youtube. This would be a traditional lip dub with a little step up in production as they would use some greenscreen and use some face tracking to animate anti-racist quotes on the faces of the participants. They want to mimic some of the effects in the video as well as add some of our own. So it is transforming the work. Also, this would be a new creation based on the content of the video and use of the music.
In short, they are looking to do a lip dub of the song with their own spin on the video. The college has their own video streaming platform so this would not be on Youtube.
This would be for the campus community but there might be that people could share outside the organization.
The intent is to educate the campus and is part of a greater initiative to promote diversity equity and inclusion.
This submission is a "fair use” question coming at us from a private college, so before we delve into a reply, I have to emphasize that the specific analysis in this case is limited to that type of entity (a private, accredited school).
Since it can get boring "emphasizing" disclaimers in prose form, I will emphasize it in verse:
If ye a public library be
This analysis is not for ye
If a SUNY or public school
Do not swim in this legal pool
Okay. With that out of the way (and for those of you not put off by either the disclaimer, nor the crude verse), here is my answer:
Riffing on, parodying, and building on popular songs can be an effective way to convey a unifying or powerful message to a group. The use of a known work of art can build on shared familiarity, while modifying it with a unique twist can create a unique and unifying experience.
The technique described by the member is a very popular approach for higher education institutions, and for unrecorded performances/parodies/riffs that are done live on campus, the school's ASCAP/BMI may even apply (meaning, the site of the performance has permission).
Of course, this is 2021, and that means, it doesn't happen if it isn't on video (or in a picture). And since we are still in the midst of a pandemic (although things are looking a tad brighter, here in May of 2021), having a video that is an experience customized, created and controlled by the school is a desirable way to build remote cohesion.
When considering the use of copyright-protected content without permission, there are two factors a private institution must consider:
1. Risk management
2. Copyright infringement
"Risk management" is not about the actual legality of one's actions, but the risk that one's actions will be observed and perceived as illegal.
In this case, the additional circumstances the member lists here (not using YouTube to post the final product) enables "risk management" in two ways: a) the resulting video will not be "purged" from YouTube due to a copyright "red flag" (which can happen even if there is a fair use); and b) by hosting it on a less popular server, it is less likely to be seen by services and bots that are "out there" policing copyright laws.
But of course, an educational institution doesn't want to get away with infringement, it wants to not commit it. And that is the essence of the member's question: is creation of this derivative work a "fair use"?
In their question, the member has walked us through some of the "fair use" factors. The member identifies as an educational institution. The member states that the use of the work will be "transformative." The institution will use all of the audio, and be evocative of but different from the video. And, although it is not specifically mentioned as such, the described use of the resulting derivative work will (clearly) not be a replacement in the market for the original.
What is missing from the submission is the consideration: why this particular work? In order to justify a fair use-especially of an entire work (the audio), the use must not only be transformative, but there must be a reason why that particular work is chosen, and the message sent by the "transformed" work must relate to that reason.
In other words, you don't select the underlying work to re-transmit it at face value; you select the works to say something new, that at least in part, relates back to the riffed/parodied work.
The best example I have seen of this lately is a complete, unaltered use of the "Avengers, assemble," scene from the "Endgame." The clip is exactly as it is in the movie, with no changes to audio or video, except the author puts captions near the various super-heroes as they show up, giving the characters new names, and drawing an analogy to how they saw the protests of 2020 developing.
The end result of this modified "Avengers, assemble" clip is not only highly transformative--the clip is no longer in any way about the original superheroes--but the author uses the identities of the originals to make comments about both those iconic comic book figures, and the categorical names he ascribed to them. It's such a good example, it could be used to teach "fair use" in a law school class (you can see it here, or just search "endgame protestors 2020 avengers" and it'll pop right up).
With regard to this use of audio and video, it is this question--why this particular work was selected--that is the missing piece of the puzzle. So long as that piece fits in, there is a good claim for fair use.
If it is decided that there is a good reason to select the original work, the other thing to be cautious about is how the end result (the new video with the unmodified audio) is used. If it is used only as described and is built into a structured discussion about equity and inclusion--especially if the lyrics and images are used as focal points in the discussion-there is a strong case that this is an academic, non-commercial use.
However, we have to remember that at the end of the day, a college is a place where students pay to be. If the video bleeds into recruitment materials, or is not coupled with the education/discussion, the more likely the use could be found to be commercial.
So: the more "academic" the end result (and its context) is, and the more the initiative functions as both a comment on the source material, and its own, stand-alone message, the better. Since fair use is not simply an additive analysis (it's not just one factor vs. another, but rather, how the factors resolve and then inter-relate to each other), every aspect of this is critical.
Within those parameters, and if care is taken so the video is only used in the educational context (not simply sending a link to it out in a newsletter, without the educational content and context), there is a strong case to make that the new video, inspired by the song’s current video and using that unmodified song, is not a copyright infringement.
I am sorry I could not be more definitive...answers like this are why very often, people just ask for permission!
 I am going to jump right into this answer with the assumption that the reader knows the basics about fair use (Copyright Act Section 107). If you don't know the basics of fair use, you can get the gist on in these "Ask the Lawyer" RAQ’s: https://www.wnylrc.org/ask-the-lawyer/raqs/43; https://www.wnylrc.org/ask-the-lawyer/raqs/78
 So I went to find an example of these "bots" and got more than I bargained for; here is an example of not only how video-sharing services shut down fair use on platforms like YouTube and Facebook, but a story about how this blocking is impacting how people film and transmit law enforcement activity: https://www.eff.org/deeplinks/2021/02/cops-using-music-try-stop-being-filmed-just-tip-iceberg
 A derivative work is a work that incorporates copyright-protected work. The right to authorize derivative works is one of the six rights reserved to the owner of a copyright. Parodies that incorporate or draw heavily from the original risk being "derivative works" (and thus infringement) unless they are 1) done with permission or 2) are a "fair use."
 For instance, Weird Al, although he could likely claim fair use for many of his parodies, always gets permission.
Kids have been playing in our parking lot and my board is concerned that they will hurt themselves and we will be liable. We have a very vague policy about our parking lot being for patrons to park at only and a couple signs that say patron parking only. We can update our policy to be more specific if need be but their thoughts are no policy on our end will protect us if someone gets hurt and says they didn't know our policy so we need a sign posted that makes it clear we don't expect kids to be riding bikes, go carts, etc in our parking lot.
Our treasurer thought maybe just a "no trespassing" sign would work.
Another Library Director I know said they have a sign that reads:
On Library Property"
Would something more specific like that be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?
The kids are often waiting until the library is closed and I'm no longer there before they start riding around on it so simply being vigilant telling them to leave is not going to work.
Thanks so much for any guidance you can offer.
Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action. Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.
As a lawyer who studies how the law impacts what people do--and how we do it--I find skateboarding fascinating. Since at least the late 80's, in town meeting after town meeting, legal case after legal case, site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).
That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury. It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.
Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.
For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum. The mission of your institution is to be accessible, inclusive, and to serve your community. Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds).
How can an institution achieve this balance?
For an institution confronted by this issue, there is a five-step process that must be conducted:
STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds. Does your library own the lot, or is it rented and subject to the terms of a lease? What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).
STEP TWO: What insurance covers the lot, and what types of incidents are covered? This step will provide insight into how your institution is set up to manage the risks you've identified.
STEP THREE: What is the purpose of the parking lot and grounds? What functions do those resources serve? Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library. However, in the case of a lease or shared premises, that might not be the case.
STEP FOUR: Confirm and harmonize everything from the first three steps.
This fourth step sounds simple, but it can take many forms.
NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.
STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.
Why these steps? Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations. For instance:
In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.
For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:
"Our parking lot is for the safety and convenience of
our Library's diverse and wonderful community.
Please limit your use of our lot to parking your bike or car
while using the services of the library."
Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:
"Parking lot use limited to parking for
library patrons, employees, and vendors.
Which brings me to the member's actual question:
"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"
As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache.
In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:
"This parking lot is for parking only.
No recreational use allowed at any time."
And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.
We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.
If that is true, what is the purpose of the signage?
The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).
Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.
Why? If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability. To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).
This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.
In closing, I have to say: writing effective property signage is a tricky thing. Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource. Here is a model to consider (after your library follows all the steps):
"To promote a safe and welcoming environment,
this parking lot is for parking and library-approved events only.
All other uses must be approved in writing by the library.
To inquire about using our lot for a community event, call ###-###-####."
...with shorter, smaller, punchier signs at key areas to reinforce the core message:
"No playing in our parking lot at any time.
I wish all libraries reading this a reduced-risk, injury-free parking lot.
 In the field.
 I had a board in the 80's, but I only ever attained the level of skill shown in Tom Petty's "Free Fallin'" video (which is to say: not very much).
 And maybe earlier?
 I like this one: People v Smith, 160 Misc 2d 1070 [Just Ct 1993]
 I am not going to cite a study here. Rather, I will cite NY Insurance regulation 11 NYCRR 27.3, which includes in a list of specially elevated risks: "Asbestos, Fungi and Water Damage Remediation ... Amusement Parks and Carnivals Property...Amusement Rides and Devices ...including bumper cars, go-carts and go-cart tracks, giant slides, skateboard tracks, roller-blade tracks...."
When you want to know if something is statistically risky, ask an insurance carrier.
 These measures are also used to "dissuade" people from sleeping and getting comfortable in public spaces, an overlap worth contemplating.
 A skateboarder or roller-blader on a sidewalk or in a parking lot can pose a risk to a person walking with a small child or stroller, using a walker or wheelchair, or walking an animal.
 Although the question was confined to the "parking lot" I am adding "and grounds" since this issue doesn't just involve parking lot concerns.
 BMX bikes, skateboards, and roller-blades take the brunt of this type of issue, but frankly, does your director want to quibble over policy when a group of rogue folk-dancers hosts an event in the parking lot after-hours?
 I like this last bullet because it reserves the right of a library to host a planned recreational event, but to otherwise bar them on the property. Further, by avoiding the term "loitering," it reduces the risk of confusion for those who need to park or sit on the grounds after-hours to use a library's 24/7 free Wi-Fi.
 If you go with this one, confirm with your local PD that they will do this in a way that is consistent with the mission and role of the library. NOTE: I appreciate that in some places, this will not be viewed as a viable option. The mission of your library should be the guiding factor in deciding whether or not to involve law enforcement or private security in this type of policy.
 Whenever possible, it is good to use a licensed architect or credentialed municipal planner to design signage; they will pay attention to things like reflectivity, placement, font choice, and ADA accessibility.
I serve on the board of an association library.
My family has to consider legal proceedings against a school district that provides funds to the library through a public vote (as required by law, when the District puts the ballot out, the amount for the library is separate). Would my personal legal proceedings pose a "conflict of interest" with my position as a trustee? Is there any foreseeable conflict?
Before I answer, I would like to thank this unnamed trustee for bringing forward this important issue. Dealing with personal legal matters is rarely easy; remembering to factor in consideration of one's volunteer obligations at the same time is impressive.
On its surface, this question is a fairly simple exercise: does the status of a library trustee as a plaintiff against the district supporting the library create a "conflict of interest" that would violate the library's bylaws, ethics, or the Not-for-Profit Corporation Law ("NFPCL")?
To address that question, one must first understand what is meant by a "conflict of interest."
The concept “conflict of interest” sounds simple, but often quickly gets, as they say these days, “complicated.”
Why is that? For a library, the concept of a "conflict of interest" could consist of layered elements like the petals of one, single (but complex) rose...or it could be a complex, multi-variety bouquet.
What can comprise this bouquet?
Let's start with the rose.
Section 715-a of the NFPCL requires every charitable corporation in New York (a category that includes most libraries), to adopt and enforce a policy "to ensure that its directors, officers and key persons act in the corporation's best interest and comply with applicable legal requirements, including but not limited to the requirements set forth in section seven hundred fifteen of [the NFPCL]."
Let's peel back the petals on this first thorny flower. In one sentence, 715-a lists a broad expectation (acting in "the corporation's best interest"), a broad mandate ("comply with legal requirements"), and one very specific law to follow (NPFCL 715, which bars "related party transactions").
Let's take that last petal first. What is a "related party transaction?"
According to the NFPCL's "Definitions" section, a "related party transaction" means "any transaction, agreement or any other arrangement in which a related party has a financial interest and in which the corporation or any affiliate of the corporation is a participant..."
Based on the information provided, the trustee submitting the question is not in a "related party transaction". The suit is not against the library, and in this scenario, the district who will be named in the suit is not an "affiliate" of the library. Since the district is required to put the tax vote on the ballot (the school board has no control over this; it has to put the ballot up as proposed by the library board), the act of using the district to float the vote to the public does not create a relationship that could serve as the basis of a conflict.
Let's take the middle petal: "legal requirements?" Is there any "legal requirement" that a trustee not bring an unrelated legal action against a school district who facilitates a library budget vote? No.
And finally, that first, most fraught petal: "the corporation's best interest?" --We're going to leave that for last.
What other “blooms” could join, and affect, this "conflict of interest" bouquet?
Fortunately, no matter how many blossoms in the "conflict of interest" bouquet, the law requires that when the possibility of a conflict arises, it is the board--not the individual trustee--who must assess it.
The NFPCL does that by requiring a board to pass a conflict of interest policy that:
...include[s], at a minimum, the following provisions:
(1) a definition of the circumstances that constitute a conflict of interest;
(2) procedures for disclosing a conflict of interest or possible conflict of interest to the board or to a committee of the board, and procedures for the board or committee to determine whether a conflict exists;
(3) a requirement that the person with the conflict of interest not be present at or participate in board or committee deliberation or vote on the matter giving rise to such conflict, provided that nothing in this section shall prohibit the board or a committee from requesting that the person with the conflict of interest present information as background or answer questions at a committee or board meeting prior to the commencement of deliberations or voting relating thereto;
(4) a prohibition against any attempt by the person with the conflict to influence improperly the deliberation or voting on the matter giving rise to such conflict;
(5) a requirement that the existence and resolution of the conflict be documented in the corporation's records, including in the minutes of any meeting at which the conflict was discussed or voted upon....
So, at the end of the day, no matter how large the "conflict of Interest" bouquet, it is the board, as a whole, who has to sniff out a problem.
In this case, the rub is in that first petal: the requirement that a trustee always act "in the corporation's best interest."
At the surface, there is no conflict whatsoever in this scenario: the school district is not a partner or contractor with the library, and the school board has no discretion about whether or not to put the library's budget on the ballot (they must put it exactly as the library board requests it). Therefore, even if the contemplated lawsuit by the trustee is not taken kindly by the school district's board, there can be no direct negative impact.
Now, however, for a pragmatic answer: in a world where everything is political, and library budgets all the more so, could an adversarial relationship between an individual library trustee and a school district board be in something other than "in the best interest" of the library?
That consideration--and its answer--is not a legal issue. In this scenario, there is nothing that violates the law, and I have never seen an oath of office, nor a bylaws provision, that would bar trustee service under such circumstances. Further, as discussed above, even if the school board takes umbrage, they would be powerless to block the requested ballot item.
However, there is a "soft" consideration here that goes beyond the law. I categorize these types of concerns not as "legal" issues, but that dreaded concept: "diplomacy."
When it comes to "diplomacy"...could members of a community, including an individual school board member in their individual capacity, decide to take a dim view of a library trustee who is suing their district, and try to punish the library? They shouldn't, but as individuals, speaking just for themselves, they could...they absolutely could. And even though their negative actions couldn't block the budget vote, it could influence a vote in non-official ways.
That said, the possibility of such personal vengeance in no way creates a legal conflict of interest. So, for the reasons set forth above, a board doing an assessment of this situation--unless their policy specifically includes a unique definition or example that bars trustees sowing bad PR, even incidentally--would likely not determine that it constitutes a forbidden conflict.
Of course, a trustee may decide that they have enough on their plate, just being a plaintiff in a stressful lawsuit, and resign to avoid the (real or possible) stress of the situation. Or the board and trustee may engage in some practical "risk management" and mutually agree that, given a high likelihood it could impact the board-to-board relationship, it is best if the trustee steps down for a time. But such an option would not be required by law and would be based on pragmatism...and it could only be effected with the consent of the trustee.
And THAT is my answer to this very important question.
I wish the trustee who posed it both 1) a thoughtful and supportive library board, and 2) a school board with the ability to maturely and completely compartmentalize legal issues from diplomatic ones.
 For purposes of this question, we'll assume that the only "support" the district provides to the library is the budget ballot (there is no MOU or even informal agreement for other assistance, like overflow parking, or hosting the annual fund-raiser).
 Public or association, in this case.
 There is no case law that picks apart how the commas in the sentence impact the interpretation and inter-relation of its required elements; that would be a dream case of mine (not that I wish the need to make that argument on any client of mine).
 "Related party" means (i) any director, officer or key person of the corporation or any affiliate of the corporation; (ii) any relative of any individual described in clause (i) of this subparagraph; or (iii) any entity in which any individual described in clauses (i) and (ii) of this subparagraph has a thirty-five percent or greater ownership or beneficial interest or, in the case of a partnership or professional corporation, a direct or indirect ownership interest in excess of five percent. "Relative" of an individual means (i) his or her spouse or domestic partner as defined in section twenty-nine hundred ninety-four-a of the public health law; (ii) his or her ancestors, brothers and sisters (whether whole or half blood), children (whether natural or adopted), grandchildren, great-grandchildren; or (iii) the spouse or domestic partner of his or her brothers, sisters, children, grandchildren, and great-grandchildren.
 In this case, the "corporation" is the library.
 I have not read every law passed in New York State, but I am willing to go out on a limb for this one.
 As you can see in the NFPCL, not-for-profit corporations have the right to define their own notion of "conflict," so long as the policy meets the requirements of the law.
 Only an association library might need to consider this, since the oath required of public libraries does not add to the obligation to be free of conflicts of interest (although it does undergird it).
 For instance, if the strategic plan called for the library to enter into a contract with the district in the future.
 That's right. The next time your board has to assess if the board chair's cousin getting the winning bid to the parking lot resurfacing job is a conflict, just envision being handed a fragrant mass of lilies and roses!
 Education law Section 259, found at https://www.nysenate.gov/legislation/laws/EDN/259.
We are preparing to go to the "masks recommended" phase. Staff would still be required to wear masks in public portions of the building, but not in their non-shared offices. However, for those in shared offices, how do we handle the vaccinated/not vaccinated issue? Do we go with the honor system and tell those in shared offices that if they are vaccinated, they may go maskless?
I've heard that some restaurants are allowing their servers to go maskless if they show proof of their vaccination to their employer. Would we be allowed to do something like that?
[DISCLAIMER: This answer presumes there is no collective bargaining agreement or landlord/municipal host terms that impact the library's flexibility while revising their Safety Plan.]
Okay, with that disclaimer out of the way, here are my "short answers" to these excellent questions:
"[F]or those in shared offices, how do we handle the vaccinated/not vaccinated issue?"
Short answer: Revise your library's current Safety Plan to specify how it has adopted the 5/19 NY Forward Guidelines (for advice on how to do that, please see my "Long Answer," below).
"Do we go with the honor system and tell those in shared offices that if they are vaccinated, they may go maskless?"
Short answer: I advise requiring proof (for the legal/operational rationale behind this opinion, please see my "Long Answer," below).
"I've heard that some restaurants are allowing their servers to go maskless if they show proof of their vaccination to their employer. Would we be allowed to do something like that?"
Short answer: Yes (for more on that, please see my "Long Answer", below!).
This question comes at a good time, since on June 10, 2021, the U.S. Occupational Safety & Hazard Administration ("OSHA") updated its guidance for employers on protecting workers from COVID-19. This new "6/10 OSHA Guidance" speaks to questions like these.
But first, a quick recap.
When the CDC came out with their "surprise" interim guidance for fully vaccinated people on May 13th, 2021 (the "5/13 CDC Guidance"), it took New York six days to incorporate it (into the "5/19 NY Guidance").
OSHA, on the other hand, took a bit more than six days. But by June 10th, here's what they had to say:
CDC's Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.
And from there, OSHA takes it granular.
The 6/10 OSHA Guidance sets out an array of factors for employers and workers to not just consider in isolation, but to think about as a continuum of risk assessment and safety measures. The factors they list include consideration of vaccination status, and shared office space.
Because it is so critical that employers get this right, I am putting this "6/10 OSHA Guidance" below. Now that we have this resource, I strongly advise employers to refer to it when updating their Safety Plan to include the 5/19 NY Guidance.
And now, for this library's very specific set of questions about non-public, shared office space, here is the rest of my "long answer."
As you can see in OSHA's listing, the consideration of shared office space isn't simply one of vaccination and proximity. It also involves the consideration of things such as ventilation, worker education, and individual worker vulnerabilities.
Because of this, there is no "one size fits all" answer to this library's question. Rather, the library should review the non-public, shared workspace against the OSHA criteria, and then craft a customized plan...recognizing that the protocol for areas with up-to-date HVAC systems will be different from a work area near the stacks where there might be very little fresh air.
This variability is the key consideration of shared non-public workspace. Your library's safety measures may be different when the weather is cold and workers can't open a window. Your library's Safety Plan measures may be limited if the workspace is near a rare book collection or other assets requiring precise climate control. And on top of that (literally, as an add-on after the fact) your library will need to consider the impact that a Safety Plan's working conditions can have on individuals with disclosed, pre-existing conditions (such as allergies, heightened vulnerability to COVID, or a health condition impeding vaccination).
Within all this variability (which is a LOT for any employer to handle, to say nothing of a library that is also focusing most of its energy on meeting the needs of the public), I advise requesting proof of vaccination for two reasons. First, it positions an employer to be more confident in their adherence to the plan they develop. Second, it positions employees to be confident that they are in a position to advocate for their own health.
Now, on the flip side, the employee relations challenge of requiring workers to provide vaccination status can be onerous. Some people are just not comfortable revealing that type of information, and I totally get it. BUT the EEOC and the New York State Division of Human Rights have both determined that an employer requesting proof of vaccination is not the same as an employer demanding disclosure of confidential medical information. Barring a union contract or other term forbidding the demanding proof of vaccination, employers should be confident they can require it.
That confidence can, in turn, transfer to the employees who are certain that their unmasked and nearby co-workers are vaccinated. In my experience, nothing can erode trust like an honor system where someone is suspected of being dishonorable. Further, that suspicion can turn into full-on blame if a worst-case scenario emerges and someone does get sick.
And while the current CDC and NY Forward guidance mean an employer won't likely be successfully sued for using the honor system as opposed to requiring proof, I wouldn't put it past one of my fellow attorneys to try. This is especially true if your library's Safety Plan or past planning has identified certain front-facing work or other tasks as "higher" risk, meaning there is an acknowledgement on the record that some work may bring increased exposure.
Okay, to sum up: you don't have to, but it's worth considering requiring proof of vaccination. But most critically, whatever your library does, if you update your Safety Plan, factor in the new 6/10 OSHA Guidance.
Since the combination of options is extensive (New guidance? Old? Require vaccinations? Proof?) I have laid out a chart below. Below that are some of the high points of the 6/10 OSHA Guidance, which every employer should read.
I hope this reply makes up for in helpfulness what it poses in complexity. I wish you calm and careful planning as your library moves into this next phase.
Safety Plan -->
Employee requirement -->
No Use of NY Forward 5/19 guidance
Updated to NY Forward 5/19 guidance
and uses "honor system" only for employees
Updated to NY 5/19 guidance and library requires proof of
vaccination for employees
Employee vaccination status not considered in Safety Plan
This means your library is still using your pre-May 19th Safety Plan; that's fine, just stick to it until it is updated.
Not possible (if using 5/19 guidance, the library must consider vaccination status).
Not possible (if using 5/19 guidance, the library must consider vaccination status).
Employee vaccination status considered in Safety Plan but vaccination is not required to perform routine duties of job
This means your library is still using your pre-May 19th Safety Plan; that's fine, just stick to it until it is updated.
If your library is using the honor system, but still structured so vaccination is not a factor in performance of routine duties, so long as the OSHA 6/10 guidance doesn't suggest otherwise, carry on!
If your library is requiring proof of vaccination to use 5/19 guidelines, but still structured so vaccination is not a factor in performance of routine duties, so long as the OSHA 6/10 guidance doesn't suggest otherwise, carry on!
Library-employer requires vaccination as part of Safety Plan and vaccination is required to perform routine duties of job.
With such rigorous requirements, assessing the Safety Plan under the OSHA 6/10/21 guidance is wise.
This combination brings some risk since it bases safety on vaccination but does not require proof, which limits the ability to assuage employee relations concerns regarding unvaccinated colleagues.
This combination provides the best documentation of maximum risk management and positions library to address employee relations concerns regarding unvaccinated colleagues.
Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. 2
Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:
Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.
At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) can separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.
Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Under federal anti-discrimination laws, employers may need to provide reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.
Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.
When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR 1910, Subpart I (e.g., 1910.132 and 133). There are times when PPE is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make such a request. Other workers may want to use PPE if they are still concerned about their personal safety (e.g., if a family member is at higher-risk for severe illness, they may want to wear a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances and ensure the equipment is adequate to protect the worker.
For operations where the face covering can become wet and soiled, provide unvaccinated and otherwise at-risk workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide protection by themselves. See CDC's Guide to Masks.
Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.
For basic facts, see About COVID-19 and What Workers Need to Know About COVID-19, above and see more on vaccinations, improving ventilation, physical distancing (including remote work), PPE, and face coverings, respectively, elsewhere in this document. Some means of tracking which workers have received this information, and when, could be utilized, by the employer, as appropriate.
In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation. This information should also be provided in a language that workers understand. (See Implementing Protections from Retaliation, below.) Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.
In addition, employers should be aware that Section 11(c) of the Act prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer. In addition, mandatory OSHA standard 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.
Note on recording adverse reactions to vaccines: DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not want to give any suggestion of discouraging workers from receiving COVID-19 vaccination or to disincentivize employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. OSHA will reevaluate the agency's position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.
In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.
Appendix: Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers
Employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors:
In these types of higher-risk workplaces – which include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing – this Appendix provides best practices to protect unvaccinated or otherwise at-risk workers. Please note that these recommendations are in addition to those in the general precautions described above, including isolation of infected or possibly infected workers, and other precautions.
In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:
In workplaces (or well-defined work areas) with processing or assembly lines where there are unvaccinated or otherwise at-risk workers:
In retail workplaces (or well-defined work areas within retail) where there are unvaccinated or otherwise at-risk workers:
Unvaccinated and otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans.
 While not every library is covered by OSHA regulations, OSHA's standards are a "go-to" for protecting workers, and much of New York's guidance on COVID safety refers employers to their materials.
 Considering what's at stake, I appreciate that.
 "Granular:" a tired buzzword, I know. What word/phrase would I have used pre-2014? "Particular?" "Minutely specific?" Look at all that CDC minutia! Sometimes "granular" really does get the job done.
 I once worked in a dampish half-basement that had a window that would open onto a thriving crop of ragweed. In the winter, the mold from the damp got activated by the heating units. Hello, allergies!
 This is how the law changes, after all.
 This means no relaxing of social distancing and face-covering rules; they are at pre-May 19th levels.
The New York Archives Conference recently posted a formal Code of Conduct (https://www.nyarchivists.org/nyac/code). While discussing our procedures for implementing this code, we began to wonder about the legal implications for enforcement. Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation? To summarize, we're wondering what legal ground we can stand on while enforcing our code of conduct.
It would be great to have a response before our conference on June 11. Thank you
Before I dive into this meaty and spectacular question, here is a necessary disclaimer: this answer does not apply to chartered libraries.
Who does it apply to? The following:
Specifically excluded from this answer are municipal, school district, and special district libraries, because their rules of conduct must accord with state and federal requirements of due process. Indian and association libraries must also be cautious about this issue, since the law and practices that form those libraries may have express and at times unique provisions about access.
So, to be clear: NO PUBLIC LIBRARIES should rely on this answer (unless you are using it to help a private museum answer questions about enforcing its code of conduct). 
Okay, with that established, here is the answer:
At the heart of this question is the charter (or certificate of incorporation) and bylaws of an organization. Close to the beating heart are its policies.
In New York, most not-for-profit organizations are made "official" through a filing with the NY Department of State. However, many cultural not-for-profit organizations (including the New York Archives Conference) are made "official" via "chartering" or "incorporating" through the State Department of Ed.
Both types of entities--"chartered" organizations, and "not-for-profit corporations"--are "real" entities, created by law.
It is this act of creation--through charter, or incorporation--that sets the stage for how an organization gathers its participants and conducts its business...which is exactly the member's question.
So, before anything else, to determine "what legal ground we can stand on while enforcing our code of conduct" one must look at those documents, which are the key to the identity of the entity.
3.1 Membership. Membership shall be open to all persons interested in the purposes of the Corporation. The Members and Board may establish such other criteria for membership, including a schedule of dues, as they deem appropriate.
Meanwhile the Conference's membership terms on its website state:
The constitution and by-laws reflect as much as possible the traditional informality of NYAC. Traditionally, membership in NYAC has been based on attendance at an annual meeting. A single attendance put a person’s name on NYAC’s mailing list for a long time, resulting in a cumbersome list with many out-of-date addresses.
The membership year will coincide with the fiscal year of NYAC, from July through June. The annual meeting registration fee will include the membership dues (currently $15.00). For people unable to attend the annual meeting, membership dues should be sent to the NYAC treasurer to ensure receipt of the following year’s program. If, by some strange chance, a member pays the annual dues prior to conference registration in a given year, his or her registration will be reduced accordingly.
The authority of the Conference's board to adopt the criterial for membership, including adherence to a "Code of Conduct" that can apply to members (and guests), is found back in the bylaws, which state:
4.2 General Powers. In addition to specific powers delineated in the By-Laws, the Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation, the By-Laws, or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation.
The "Code of Conduct" the member's question links to is one of the "rules and regulations" mentioned in Bylaws section 4.2.
Looking at the Code, you can see that it encourages certain (welcome) behavior, and bars certain (unwelcome) behavior, with the following being used to enforce the requirements:
All participants are expected to observe these guidelines during the conference or any NYAC proceedings, including virtual settings. If you may witness or experience any inappropriate or harassing behavior please report this concern using the form below.
Dial 911 for immediate medical emergencies or to report a crime. All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse.
The policy then sets out multiple options for reporting, including an online form, which states:
We can't follow up on an anonymous report with you directly, but we will fully investigate it and take whatever action is necessary to prevent a recurrence.
...all of which brings us to the member's question: how can this be enforced?
First, it is important to consider just what is being prohibited. Here is the list from the Code (as stated at the bottom of the Code, this policy is inspired by Codes adopted by other archival organizations):
NYAC does not tolerate harassment of any shape. If any participant engages in any demeaning, abusive, coercive, discriminatory, or harassing behavior, appropriate consequences will be taken against such individuals. This could result in something as minimal as a warning or more serious as being handled by the authorities. Harassers may lose privileges to the conference(s).
Second, it is important to establish: as a not-for-profit corporation operating in New York, the New York Archives Conference already has to follow the below-listed laws:
So even without such a policy, there is not only authority, but could be an obligation, to receive reports of certain behavior, and deal with them as required by law.
A good example of this, from the Code, would be derogatory comments based on sexual orientation (which could be a violation of New York's bar of sexual harassment).
Third, it is important to consider that some of the conduct listed in the Code is criminal. Examples of that include:
For instances involving the alleged commission of a crime, a report and investigation could quickly become complicated by questions such as: will the reporter want to contact law enforcement? Does the venue have an obligation with regard to the incident? Does the Conference have evidence that could later become relevant in a criminal proceeding?
And finally, it is important to see that this Code requires conduct that "rises above" the bare minimum set by various laws.
For instance, the Code bars interruptions, rudeness, and demeaning conduct. While sometimes such conduct can be a part of illegal "harassment" or even "coercion," barring even one minor instance of such conduct is more about setting the professional atmosphere for the Conference, rather than simply obeying the law.
"Setting the professional atmosphere" for an organization might also be called "setting the norm." By adopting this Code, the Conference is setting a norm of courtesy and respect, ensuring members are not interrupted or jeered when participating in Conference activities.
So how does the board enforce this "professional atmosphere"?
I could go on and on about the law, but I have 5 tips:
Tip #1: Model the behavior you require.
The best way to enforce a Code of Conduct is to ensure the leadership within the group visibly complies with it (this will also ensure compliance by directors and officers, which will help avoid legal complications).
Tip #2: Repeat the rules often.
It may leave leadership feeling like a broken record, but when it comes to new norms of behavior, repetition is your friend. It is great that the Code has its own sub-page on the Conference web site; for an event or meeting invitation, a link should be on all materials. Conference event leaders and speakers should get at least a 15-minute orientation on how to comply with and benefit from the Code during events, meetings, and online discussion (I am a fan of training through role-play). The board should revisit the Code at least once a year to discuss specific incidents and assess if the institution's response requires refinement.
By repeatedly describing and addressing the norms, they will be built into the foundations of the organization.
Tip #3: Follow through on enforcement.
The Conference's Code says "All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse." What does that mean? That each report must result in a final summary as to how the incident was handled.
Unfortunately, there is no one way to ensure this level of follow-through. Some instances may be resolved simply by a discrete chat with a person to let them know that their romantic overtures are inappropriate. Other incidents may warrant an announcement to all attendees at an event ("We received reports of numerous interruptions. We want to emphasize that this is a violation of our Code of Conduct."), as well as more private action directed to specific individuals (a letter or warning). Still other incidents (hopefully very rare) could result in ejection from an event and/or a report to law enforcement.
The trick is that for every report received, there be a good summary of the reported conduct, and a thorough "final summary" as to how the incident was investigated and resolved. Again, there is no one-size-fits-all for this: some instances might be resolved with a paragraph ("The attendee was told that for the remainder of the Conference, no interruptions would be tolerated, and she agreed"), others could result in multiple pages and coordination with other organizations (for instance, if two co-workers get into a screaming match and call each other discriminatory names, be ready for lots of paperwork).
Tip #4: Have an established team, and a back-up team, to handle reports.
A reported incident under a Code of Conduct is not a trip for a part-time volunteer to fly solo.
Even if a report seems straightforward ("I sat down after presenting and PERSON gave me a long hug that made me very uncomfortable"), handling reports under this Code is not a one-person job. There are too many variables that can trip up even the most diplomatic and well-intentioned individual.
If you are a designated report recipient, you need calm, steady back-up. This is why having a pool of at least six people who know the Code, and are ready to respond to a report, is critical, and using no less than two people to respond to each report is also important.
Tip #5: Know when to bring in a pro.
The member has asked:
Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation?
These are excellent questions fueled by perceptive concerns; even the most professionally handled investigation with maximum due process can lead to distrust, the forming of factions, destabilization, and even (as the last question alludes) claims of liability.
How does an organization avoid that?
For a policy such as this Code of Conduct, at an all-volunteer organization, it is good to have a sense of what things can be handled in-house, and when it is time to call in an expert.
Here are some broad guidelines for when to bring in a ringer:
Now, when I say "bring in a ringer," I don't mean a person to take over the whole investigation (although they may). And I don't necessarily mean a lawyer. I simply mean a person with the professional skills and past experience to help the organization consider issues beyond the Code, but critical to the organization: risk of personal harm, liability, legal compliance, insurance, and (a distant fifth, but still important) public relations.
For issues that are going to result in a "soft" correction ("Hi, we know people hug here on occasion, but please know that unless a person has told you it is okay to hug them, it's a Conference rule that you refrain"), there is no need to consult a pro.
But for "hard" corrections ("After repeated warnings regarding physical contact, you continue to impose unwelcome physical contact, and we must ask you to leave the Conference immediately") it is good to quickly check in with a pro.
For example, if I was consulted on the above "inappropriate hugging leading to a ban" scenario, I would ask:
I would then work with the client to craft a swift but thorough response that ensured clear documentation of the occurrences, ruled in or out any allegation of injury or illegality (a very prolonged hug can be a criminal act, or just a very welcome gesture, depending on the details), used a risk analysis to adopt an immediate response, and developed a clear path forward to effect a resolution.
The good thing is, with the power of leadership modeling, repetition, and training, most complaints will be in the "soft consequences" zone ("I was speaking and PERSON interrupted me to tell me our approach was 'junk' and say how much better their database would handle the content; I just want to know that you have let them know that is unacceptable.").
If a serious complaint does come along, there is no "catch-all" due process I can recommend for responding. However, I can say that for each report, each response should follow this pattern:
In my experience, where all-volunteer organizations get in trouble is when a serious complaint (such as a complaint with injuries, or extreme rancor, or challenging harmful norms in the organization) is sat on (meaning: no action is taken, because they just don't know what to do). This, along with early identification of risks and planning to avoid liability, is why I advise bringing in a pro for "serious" matters.
Other than the "serious" matters, having a group of board members or a volunteer committee trained and ready to nimbly and promptly address concerns under the Code will be a tremendous service to your organization. I applaud the Conference for adopting a Code, and for thinking about the details of enforcing it.
I wish you many challenging-but-polite, innovative-but-patient, and rigorous-but-respectful events.
Thanks for a great question.
 I say "spectacular" because for me, questions like this are why I was first interested in studying law. My whole career is based on a 30-year fascination with how the law impacts what we can do and say. When a question stands at the apex of your life's work, that is "spectacular."
 I know "Indian" can be a controversial term, but that is the term in the law. In New York, the chartered Indian Libraries are The Akwesasne Library and Cultural Center the Seneca Nation Library, and the Tonawanda Indian Community Library.
 New York Education Law Section 253, which enables the creation of chartered libraries in New York, requires that all such libraries be "free" to their areas of service, and of course there are regulatory requirements about access, and system rules about services throughout a system, so caution is warranted when it comes to items that could curtail access to a chartered library.
 Shoo. Go away. This answer is dangerous to you!! (Ok, you can stay...but don't use this answer).
 Nerd note: The Conference is not a chartered entity, but rather a corporation formed through an application to the Regents. This means there is no charter, but rather, articles of incorporation that bring it into "life."
 Found on May 24, 2021 at http://www.nyarchivists.org/nyac/wp-content/uploads/2011/03/NYAC_bylaws_rev2010_final.pdf.
 Found on May 24, 2021 at https://www.nyarchivists.org/nyac/membership-information/.
 Since the Conference has no employees, their obligations will not flow from employer status, but there are still contexts where the civil rights laws will apply.
 For instance, if stalking takes place on a college campus--even if the Conference just rented the venue--the incident requires a very precise response by the college or university.
 And often do.
 Is "broken record" still a thing? Perhaps we should start saying "repetition code."
 Gender, cultural, class, language, power balance, race, religion, and perceived bias issues, to name just a few.
 Just a small note: when a policy like this is first enacted, it may feel like you are getting a lot of complaints. Actually, this will be the very normal process of a group adjusting to newly established norms.
 The standard choices are "preponderance of the evidence" and of course "beyond a reasonable doubt." Either is fine, it just should be uniformly applied.
Our by-laws name certain committees as committees of the corporation --- "No such committee shall have the authority to bind the board. Members of such committees of the corporation, who may be non-trustees, unless otherwise designated, shall be appointed by the President."
Can the non-trustee members of a committee vote if one is called for in the committee? It seems like they could because the committee can't bind the board, however we could see where their vote within a committee might mean that something isn't brought to the full board.
Related to this, should we amend the by-laws to specify them as voting/non-voting members of committees?
This reply will answer the questions up-front, and then tackle the concern about the full board not seeing a matter since it was voted on in committee in the "background and commentary" section.
1. Can the non-trustee members of a committee vote if one is called for in the committee?
Yes, if a library board has a committee with non-trustee members, those non-trustee members can vote.
2. Should we amend the by-laws to specify them as voting/non-voting members of committees?
No, there is no need to amend the bylaws. If the non-trustees are properly appointed committee members, they may vote. If the non-trustees are not actual committee members but are instead there in an advisory capacity, they should not be referred to as "members" in the first place, and the appointment letter should make that clear.
And now, for some background and commentary.
Back in 2014, the New York Not-for-Profit Corporation law was amended to create two types of board committee:
As the member points out, "Committees of the Corporation" are committees that--while they might work hard on matters of great importance to the library--cannot "bind" the board...meaning, they can't make "official" decisions final (authorizing a budget, signing a contract, or voting to hire a director).
"Committees of the Board," on the other hand, are authorized to "bind" the board in certain matters, including investments, endowments, employment, and some matters relating to real property.
While this "Committees of the ______" change was quietly revolutionary in many not-for-profit circles, it was already somewhat familiar territory for libraries, because the Education Law already authorized them to have an "Executive Committee" to "transact business of the corporation" between meetings. In other words, libraries were already used to designating committees with express and binding authority. This just gave them more options to bring on more participants who were not trustees.
Now, while "Committees of the Corporation" may not be not tasked with the Really Big Decisions, as the member points out, they can still do very important work.
For example: let's say a library has created a "Public Relations Committee" ("of the Corporation") responsible for monitoring and identifying tactics for the library's presence in traditional and social media. The committee doesn't sign contracts or even write press releases; it simply monitors and issues advice, meeting virtually once a month to review the library's media footprint and track its various metrics.
Based on some observations, the committee decides the library should adopt a "Social Media Policy." Since the committee can't "bind the board," they can't vote to adopt the policy, but if they vote to do so, they can:
Now, here's where the member's concern comes in: How does the full board know this work is being done?
The critical work of committees "of the corporation"--even if they are not "binding" the board--should be connected to that of the full board by a routine report (or meeting minutes) that are "received and filed" by the full board subsequent to every committee meeting. That way, whether or not the committee votes, the board is aware of its work, and what is in the pipeline. Committee work should never take place in a vacuum; it should always be linked to the operations of the board by reports and minutes.
A high-functioning library board operates like an orchestra--different sections may rehearse separately, and sometimes, there may even be a prima donna moment or two--but the end goal should be harmony.
A board's various committee types may have different functions, compositions, and authority, but they are all part of that system. Thank you for a great question that showcases their differences and value.
 A valid concern.
 They can't do everything, though, so proceed with care!
 A wild bunch who brandish the word "fiduciary" the way some people wield the term "linebacker."
 The special focus of a PR committee, by the way, is why a library may want to bring on some non-trustee "ringers" to help with specific issues (a building committee is another great committee where you might want someone for a non-specific set of skills).
 Or at least, whenever the committee meets. Some committees only meet and act once a year; obviously, that committee only needs to submit one report!
Our Library Director was hired 5 years ago and has always been paid for her attendance at monthly Trustee meetings. In 2021 the Town Supervisor stopped this long-standing practice. Our Town pays our Library Director.
Is this legal without letting the Trustees and Director prior to stopping the practice?
"Is this legal?" Not likely.
But before I say more, I just want to offer a quick primer on how things work at "Ask the Lawyer."
Since the situation depicted in the question could result in legal claims by the Director, the board, and/or even the Town--or be relevant to an audit by the State Comptroller--this is the type of "Ask the Lawyer" question that can only be answered--really answered--under attorney-client privilege.
Why is that? Because of how "Ask the Lawyer” works. When questions like this are submitted (questions that ask for advice and guidance for the requesting member and their council, as joint clients), our typical approach is to a) contact the member, b) get any additional information needed to assess the question, and then c) send an attorney-client privileged answer. 
After that, if the member consents to it, we create a "generic" answer, channeling the research gathered into general advice that may be useful for a broad audience (of libraries, museums, historical societies, and other regional council members).
This question, of course, presents an issue mostly relevant to public libraries. And here is the "generic" answer to the scenario presented:
There are a number of factors an attorney needs to dig into in order to answer this question.
First: is the director an hourly employee, or salaried? If salaried, this question doesn't make much sense, so we'll go with hourly.
Second: Is the director required as part of their job to attend the meeting? Since they are mostly there in their professional capacity, let's say "yes."
Third: Did the director, in the past, report the hours into the payroll system, and receive compensation for them? Let's again say "yes."
Fourth: Has the board consistently performed the aspects of board authority over the position (making the decision to hire, signing the hiring letter, performing annual reviews, working with Civil Service to amend the job description when needed, effecting disciplinary action and plans of improvement if needed, approving payroll, approving scheduled vacation times, overseeing time off for disability, effecting termination)? Again, from the scenario, we'll say "yes," which means the board has not laid a foundation for the lines of employment to be blurred (they are undisputedly in charge).
Fifth: Has the previous payroll, which included compensation for attending the meetings, been approved per the requirements of the Civil Service law? While that may be something happening subtly behind the scenes, based on the scenario, again it is probably "yes."
If we added those details to the scenario, I would see no basis for a town official to be able to unilaterally decide what tasks may or may not be compensated.
In fact, the only way I could see a town official being able to (legitimately) do such a thing is if the library board had expressly delegated all authority for supervision and payroll oversight to the town...something that would be a dangerous practice, since it would seriously undercut the library board's autonomy and authority.
The courts in New York, the State Comptroller, the State Attorney General, and local Civil Service agencies all grasp the nuances of public library boards' authority, but it can be a struggle for newer public officers. The autonomy and authority of a library board can often feel like a square peg to a public official used to only round holes. That is why it is important to nurture the relationship routinely, deliberately, and carefully.
What can be done in this case? To avoid a claim of unpaid wages, a library board would need to develop a plan to put things right. There are a number of ways to approach this, but I'd start out by enlisting the help of the local Civil Service, who can confirm that the library is a separate employer, with an obligation to confirm their employees' hours. In the alternative, a good resource who may take a similar technical approach could be the municipality's attorney.
Since all that could take some time, if the board wants to vote to adjust the payroll (ensuring the payment is properly subject to taxes and withholding, etc.), the board may also want to enlist the help of the State Comptroller (the authority that audits public library payroll from time-to-time). How would a library do that? Prior to any adjustment, it would be a good idea to confirm the basis for the correcting payment in writing with the Comptroller, after which the board could resolve to make the adjusting payment (since the minutes of the meeting, and the meeting itself, are a public record, this is a good exercise in transparency).
Because of the risks involved in compensation-related matters, if at all possible, this type of challenge is a good one to work through with an attorney.
 More on this approach, piloted in consultation with Sheryl Knab at WNYLRC (who was very patient as I unpacked all the nuances about attorney ethics and retainer agreements), is described in Hope Dunbar’s excellent article: https://www.tandfonline.com/doi/abs/10.1080/15332748.2018.1443572
 Sometimes, if the issue is sensitive enough (and there is no reason to involve them) the answer doesn't even go to the council.
 It could be relevant in the sense that the salaried employee was using the meeting time to hit a minimum amount of service for the work-week (say, 37.5 hours). But that nuance doesn't quite fit the scenario.
 Note this says "approving," not "effecting." A municipality can process the payroll and provide the employment benefits, and the library board of trustees remains the actual employer.
 Two great primers on how Civil Service Law impacts hiring library directors in New York are found at: http://www.nysl.nysed.gov/libdev/trustees/handbook/cs101.htm, and https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/.
 The New York State Comptroller has understood the nuances of the library board-municipality relationship for decades. See 1972 Op St Compt File #402.
 I realize that might not be the case in some localities. If that is the case for your library, you may want to skip this step, and head to the Comptroller.
 The case at this link, Beers v. Incorporation City of Floral Park, from 1999, shows why! https://casetext.com/case/beers-v-incorporated-village-of-floral-park
Our library offers a variety of business services such as copying, scanning, emailing, and faxing, and we also have staff on hand to assist patrons with these services. We often have patrons request assistance with scanning and emailing or faxing sensitive documents including checks (with banking/routing numbers), driver’s licenses, Social Security cards, or other financial/legal documents.
I am wondering:
a) What responsibility do library staff have to inform a patron if we think they may be in the process of communicating with and sending documents to a scammer? How do we protect our patrons from scams/fraud while also respecting their privacy?
b) How liable is the library/library staff if a patron is scammed after library staff use library resources to send documents/information that played into the scam, even at the patron's request?
This question tugged at my heart, because lawyers face issues like this, too.
Maintaining confidentiality while addressing concerns that a person is being victimized creates terrible tension. The need to maintain a trusting relationship, governed by professional ethics, makes the tension all the more acute.
It is those professional ethics, however, that will carry the day.
What is the basis of a librarian's obligation of confidentiality? Confidentiality of library records is, of course, protected by state law, but it starts in item "III" in the ALA Code of Ethics:
III. We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.
But this issue also related to item "I" from that Code:
I. We provide the highest level of service to all library users through appropriate and usefully organized resources; equitable service policies; equitable access; and accurate, unbiased, and courteous responses to all requests. [emphasis added]
So, here we are: iron-clad confidentiality, coupled with "unbiased" responses to all service requests. From within those ethical boundaries, the member has asked:
There are information management professionals far more qualified than I to discuss the professional nuances of these questions. But from the legal perspective, and to address the legal questions about obligations, protection, and liability, here are my answers.
What responsibility do library staff have to inform a patron if we think they may be in the process of communicating with and sending documents to a scammer?
There is no legal duty to inform a patron of this suspicion. Further, I see nothing in the ALA Codes of Ethics that makes it an ethical duty of the profession.
How do we protect our patrons from scams/fraud while also respecting their privacy?
We have reviewed that there is no legal or ethical obligation to "protect" a patron in these circumstances, and there can even be concerns related to trust, confidentiality, and perceived bias that mean a librarian should keep their suspicions to themselves.
However, neither the requirement to be confidential, nor the obligation to provide services without bias, stop a librarian from doing what they do best: sharing information. And nothing stops a library from pre-assembling a compilation of available resources the library can use to empower a patron to assess if they are being scammed.
Here is a scenario showing how such a "compilation" could be used:
PATRON: I need to print an email.
LIBRARIAN: Sure, the computer in over here. Let me know if you need instructions on how to print.
PATRON: Can you also help me find the email? It has instructions to wire money. It's from my grandson, Michael. Normally I would ask his mother to help me but this is a real emergency and I can't tell her what's happening, it would just kill her.
LIBRARIAN: I am happy to help; there, it's printing. [pauses] You know, this request reminds me of something I read/heard about. Do you want to know about it?
LIBRARIAN [searches for "bail the grandchild" scam]: Here it is. [Retrieves list of information.] And here is a resource about who to call when there is a concern about the type of thing on this website. [Hands patron list of resources]
Here is a template for this type of "list of resources":
"Trust but Verify"
A guide to checking the legitimacy of
requests and correspondence.
Compiled by the [insert name of library].
Have you been told you suddenly owe money?
□ YES □ NO
Has there been a request for account or personal information from a new or unusual source?
□ YES □ NO
Has someone told you a family member is in danger?
□ YES □ NO
Is someone pressuring you to make a quick decision about money?
□ YES □ NO
Does something about outreach to you just not feel right? Or does it seem "too good to be true"?
□ YES □ NO
These days, scammers can pretend to be from the IRS, Social Security, or even your religious organization or family.
There are resources to help you let the good guys in, while keeping the bad guys out. Here in [library location by county or municipality], the following resources can help you make the right call:
Free for anyone 55 or older, there is also:
Your banker, lawyer, or accountant will also be able to help you confirm the source of requests for wire transfers and other financial transactions.
...Or you can ask a librarian to help you find a resource suited to a particular document or situation. We can't tell you what's legit, but we can help you find the people who can.
Don't feel bad asking, even data security specialists have to "Trust, but Verify" these days!
A simple offer of information, and a plain-language resource like this can be a handy way to raise concerns without having to tell someone "You're being scammed."
At the end of the day, not all patrons will be receptive to this offer of information, and not all patrons will believe they are being scammed--even if their story matches a scam-scenario.
But no matter what the patron's reaction, by taking this approach, the librarian will have done the only thing the librarian is ethically obligated to do in this type of situation: provided unbiased services, and granted access to information, while maintaining the confidentiality of same.
How liable is the library/library staff if a patron is scammed after library staff use library resources to send documents/information that played into the scam, even at the patron's request?
If the librarian suspects that the scenario could be an illicit scam, but doesn't know this is phishing, social engineering, or another type of activity that can lead to fraud, there is no responsibility for what happens next (unless the library has adopted an internal policy stating otherwise, in which case there could be some employer-imposed consequences).
On the other hand, if the librarian somehow knows that the scenario is an illicit scam, and actively helps with the commission of what they know to be a crime, then yes, there could be liability. But once such a scam is known, not merely suspected, this becomes a whole other question.
A few more comments
Another aspect I want to address is if the librarian is concerned not that the person is being duped, but that they don't have the mental capacity to comprehend and/or remember they are being duped.
People with Alzheimer's and other conditions impacting cognitive ability may rely heavily on an established routine of visiting their local library. Further, people with that impairment still may be able to function independently for most aspects of their day. However, a librarian detecting a possible scam could be on the front line of a legitimate concern that they don't have the function to assess the situation.
There are too many permutations of this situation for me to give general guidance, except to say: if there is a concern that a person can be vulnerable to harm due to a medical condition or disability, but their condition is not so extreme that there is clearly a justification to call medical services, call an expert.
If the person is over 55, the Center for Elder Law and Justice is a great resource; they address these types of issues every day, and their hot line is there to help assess a situation and identify possible next steps. If the person is not over 55, a good resource could be the local Social Services agency.
When it comes to this issue, my overall advice is to remember that as a resource to the community, library employees are there to provide access to information and resources, not to protect people from harm. The good news is, by providing that access in a manner consistent with library ethics, library employees can help patrons protect themselves from harm. And that is how a library can help stop a person from being scammed.
Speaking from experience, I can say that not every person will take information when it is offered. There are times when the only comfort that can be taken from a situation is to know that you tried your best. But by focusing on the ethics, and the provision of information, a librarian can help a person identify a scam, and avoid legal entanglements.
I wish you strength on this one. Your patrons are very fortunate.
 And if there are any accountants, athletic trainers, or mental health counsellors who (for some reason) read an "Ask the Lawyer" column for libraries, museums, and historical societies, I bet it sounds familiar to them, as well.
 CPLR 4509
 Which is replicated in the New York Library Association Code of Ethics.
 Don't worry, we'll also address what you can do if the patron says "No, just help me scan my driver's license," and what to do if you are concerned the person doesn't have the capacity to make an informed decision.
 It is interesting to contemplate if there could be a policy for the use of information transmission equipment (phones, faxes, scanners, email, etc.) that included a provision that "Library employees who suspect a patron is falling prey to or contributing to a criminal enterprise must immediately report their concerns to the director for appropriate action under the relevant policy;" linked with a provision in a Code of Conduct "Patrons using library resources.”
 I struggled to come up with a scenario where the librarian knows the scam is on, but here goes: A librarian is a personal friend of Jeff Bezos. A patron comes in and says Jeff Bezos wants to give $50,000.00 to the patron and 5,000 other lucky people; they just need to wire Jeff $5,000. While helping to print the wire instructions, the librarian calls their friend Jeff Bezos to ask: "Hey, Jeff, are you giving fifty thousand dollars each to five thousand people?" at which point Jeff Bezos laughs and says, "No way, but can you believe some people are actually wiring me money? Now I can repaint my third yacht. Best scam ever. Hey, want to go fishing?" Now the librarian knows it's a scam; if they help in any way after that, they are arguably complicit.
Our postman refuses to wear a mask in the building even though it is policy and a NYS mandate. When asked to, he refuses and because of that, now delivers the mail by yelling "mail" into our building bookdrop and drops the mail inside. If no one hears him, we miss our opportunity to give him outgoing mail, which he told us to just drop in a mailbox down the street. Yesterday he placed two very heavy boxes in the vestibule without us knowing.
I did call the post office and the postmaster stated that he can only ask him to wear one, but he can't force him to. Am I missing something? What is the legal obligation of the mail carrier? And why doesn't he have to follow the rules of the establishments he is entering? It is now getting to the point where it is disrupting our mail service. Do I have a leg to stand on here?
I am expediting the answer to this question in light of the new guidance issued by the CDC on 5/13 (stating that people two weeks past their final vaccination can relax on wearing masks), because I foresee more situations like this are going to arise.
The short answer to the member's question is: yes, your mail carrier should provide service in a manner compliant with USPS delivery standards, while following the requirements of current executive orders and your library's safety plan.
Further, based on the delivery standards in various postal handbooks, I think you indeed may have "a leg to stand on" in pressing the matter.
That said, when it comes to contract service providers or vendors--even the USPS--refusing to abide by your library's policy and, instead, altering a long-established mode of service, the only recourse (unless there is a service contract in play) is to do what you have done: take up the issue with their employer.
So, what more can the member do?
This question gave me a chance to do a little digging, and I was not surprised to see that the USPS has been dealing with this type of issue for a year now.
The pandemic has thrown curveball after curveball at the USPS. This onslaught has resulted in a series of temporary guidance and local union contract modifications being layered on top of the already complex web of regulations and union contracts governing the delivery of the US mail.
In other words, the "legs" supporting the case for safe and compliant delivery in this case might be tangled...making identifying the applicable rules tough, even for a local supervisor with the union contract at their fingertips.
If you try to re-visit the issue with the local office, my suggestion is to approach the issue in a spirit of problem-solving, focused on how the library can get the "actual delivery" it needs, while keeping the postal carrier safe and the library compliant with its own policy.
The Postal Service, the United Postal Workers Union (the APWU) and the National Association of Letter Carriers" (or "NALC") support the use of acknowledged safety measures.
In December, 2020, the President of the NALC wrote to the union's membership:
Today, over 14,000 postal employees are under quarantine from the virus. Well over 66,000 previously quarantined postal employees have been cleared and returned to work. About 5300 of the currently quarantined postal employees have tested positive for the virus, and another 1800 plus are presumed to be positive. Almost 16,000 postal employees who tested positive in the past have recovered and returned to work. Of all these numbers, about thirty percent are letter carriers. Sadly, 105 active postal employees have passed away from the virus, including 22 city letter carriers. We have been notified of 6 retired members who have passed away from the virus as well.
The heroic work you do each day delivering the nation’s mail is of great importance to our economy, to our health, and through the election season during a pandemic, to our democracy. As you continue this important work, please also continue to take every precaution regarding social distancing and face coverings. Please do all that you can to protect yourselves, your families, your coworkers, and your customers. Thank you for all that you do. God bless each of you and your families, please stay safe. [emphasis added]
So, what more can the member do here?
While acknowledging it could be a tangled web, working with a post office's local supervisor to truly confirm that the carrier cannot be required to follow your safety plan--in light of the statements by both USPS and the unions--might be a good first step.
I also want to take the opportunity to address the "5/13 development" (the new CDC guidance).
This pandemic isn't over, but we are clearly moving into a new phase...a new phase that will include the state, the various counties and municipalities, and OSHA (whose COVID guidance has been the go-to for workers across the country, including New York State), working to "catch up" with the new guidance from CDC.
What can a library do right now to address this new CDC guidance? We'll know soon enough...but (this is being finalized May 16, 2021) we don't know right now.
Until we have that new guidance, from a source you trust (confirmed by your county health department, straight from OSHA, or the NY Department of Health), here is a suggested template for addressing the new guidance:
Well, the CDC hit us with a curveball on 5/13 when it issued guidance stating that people at least 2 weeks past their final immunization shot can be without masks.
As of 5/16, the State of New York has not changed its mandates and guidance to incorporate this guideline. In addition, OSHA, from which many draw their safety practices, has not changed its guidance yet.
Therefore: for now, the [NAME] Library's Safety Plan is unchanged. Please continue to wear masks as before, regardless of vaccination status. Further, please continue to use social distancing when required, and continue with our established wipe-down procedures.
We are all ready for a time when we can come to work with less restrictions. We expect updated guidance from the State soon, and we will amend our Safety Plan when it is appropriate to do so.
Until then, please keep following the Plan, and carry on.
Thanks for all you do.
Overall, here is my suggested order of priorities for board and library employees working to provide critical services in this time of rapid change:
We're getting there.
 Stay tuned for even more on that, since on 5/16 we got word that NY will have guidance out on this by 5/18.
 Found on 5/14 at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html.
 Such as this one linked to the American Postal Workers Union site at https://apwu.org/contracts/handbook-m-41-city-delivery-carriers-duties-and-responsibilities: "131.35 Deliver mail according to the instructions or known desire of the addressee. Otherwise, deliver as addressed if the addressee has not moved." [emphasis added].
 For instance, if the was the ILL service, we'd look at the contract, not governing regulations.
 The link takes you to https://www.uspsoig.gov/document/employee-safety-%E2%80%93-postal-service-covid-19-response, which as of 5/14/21, stated "To slow the virus’s spread, the Postal Service required all employees to wear face coverings where a state or local mandate was in place and social distancing could not be achieved,[and] requested customers to wear face coverings in all retail facilities...."
 Their guidance listing use of masks/face coverings is here: https://d1ocufyfjsc14h.cloudfront.net/sites/default/files/apwu_march_30_supervisor_guidance_changes.pdf
 Full statement here: https://www.nalc.org/news/nalc-updates/body/12-3-20-statement.pdf. This message also includes a demand by the union president that then-President Trump apologize for stating that mail carriers were selling ballots sent in the mail. 2020 was a tough year for everyone, but this letter really brought home the extra burdens it brought to mail carriers.
 And, throughout the summer of 2021, doubtless many other developments.
If a signed license says that authorized users for remote access include "current students, faculty, and staff only" or "active faculty, students, and staff only" or even "bona fide current faculty, staff, and students only" can we conclude that terminated faculty would not be legally allowed to have remote access after their termination? (Walk-ins are a separate matter; here we are looking at remote access). Some licenses allow "affiliates" and some even say that it's up to the institution to determine who gets credentials to allow remote access, but we have more than 20 licenses that state in one way or another "current faculty" only. I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources.
Am I right?
To give readers a bit of context about my answer to this: between 2006 and 2017, I was an in-house attorney at a university. During that time, I hobnobbed with a lot of other higher education attorneys; first, because the hobnobbing helped keep us current in our practice, and second, because attorneys--like murders of crows or parliaments of rooks--are social creatures, who just need to talk about the law.
One of the many higher education/law topics that could turn a flock of lawyers into a full-fledged symposium was the issue of what is meant by the term "faculty."
Are adjuncts "faculty"? Are grad student instructors "faculty"? If a full-time staff member teaches a course or two, are they "faculty?"
Complicating the issue is that the definition of "faculty" will vary from institution to institution, based on union agreements and accreditor criteria--to say nothing of state law and regulations.
And finally, a wrinkle can be created when a "faculty" member leaves regular employment with a college or university, but assumes a new (and often under-defined) status, such as:
This issue of undefined status is the type of topic that will occasion lots of discussion and perhaps another round of potables at a lawyer’s kettle. Why the fuss? Examples exactly like the one brought up in this question. Lawyers hate it when we can't put things into minutely defined boxes to process through a legal formula (after all, the order we impose by doing so is the entire reason for our professional existence).
Here are some examples of what "disorder" a clause like those in the question is meant, by the content provider, to avoid:
Of course, just what is barred, and how "former faculty" access could violate it, is highly fact-specific. So let's take a look at the member's specific question:
...we have more than 20 licenses that state in one way or another "current faculty" only. I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources. Am I right?
Yes, you're right: if a faculty member is terminated and has no ongoing affiliation as a faculty member (even a tenuous affiliation, such as an honorary appointment or "emeritus" designation, which could give some slim justification), then there is no basis to claim they are "current faculty."
In my experience talking with aeries of higher ed attorneys, the most common way this type of concern is raised is when a faculty member is terminated, and asks to take their institutionally-issued laptop computer with them (often because it is the sole computer they have)--continuing access to servers and databases that would otherwise be cut off. Many places want to do the nice thing and say "yes," but there's a catch: the institutionally-issued computer usually has proprietary software and access that is only available to (you guessed it) current employees. (In addition, if the faculty member was teaching, it might house a lot of content protected by FERPA. So, this question of ongoing access to content only licensed for use by current employees is often the tip of a big compliance iceberg.)
But at this point, I have passed from answering the question (remember? The answer was "Yes!") and moved onto the practical considerations. Practical considerations, of course, are where many of the devilish details reside, but having answered the question, we'll leave it there for now.
Hopefully, this answer from within the conclave of the higher education law has provided some assistance and clarity. I wish the member well; raising this type of contract compliance concern, which can cut across departments at a college or university, is rarely easy, but it's the right thing to do for an institution.
Thanks for a good question.
 Other hot topics that guaranteed a searing debate included: how to negotiate contracts with musical acts, how to build support for meeting accreditation requirements into institutional policy, and the ups and downs of enforcing campus parking policies.
 Yes, and damn important faculty, too.
 Yes, I had fun looking up the proper titles for flocks of birds. https://www.thespruce.com/flock-names-of-groups-of-birds-386827
 That, and to provide endless fodder for television dramas, based on our glamorous lifestyle and impeccable fashion sense.
 If the problem is caused by retention of a computer post-termination, the best way to address it is through a policy that manages this type of situation up-front. For such a policy, there are really only two options: wipe the licensed content and all institutional information from the computer before the former faculty member is allowed to keep it, OR make it clear that institutional computers cannot be transferred after termination (neither of these solutions, of course, is likely within the authority of the institution's library staff to implement. Having a good working relationship with a head academic officer, and/or HR, can allow you to flag this issue to people in a position to do something about it.).
Some of my member libraries have questions about the new Gender Neutral Bathroom Legislation:
1) Type of signage required to be placed on or near the bathroom door. That is, does the sign have to specify "gender neutral", or, is "bathroom" ok. Also, can one use a sign that uses symbols (male, female, ADA) rather than sex?
2) Is a library required to have at least one designated male and one designated female bathroom in the building in addition to a gender neutral one? One of my libraries was with 3 bathrooms was told that was the case.
3) Is there a height requirement for braille signs so that individuals who use wheelchairs can reach it?
[This is the part of the legislation that is generating questions: "Such gender neutral bathroom facilities shall be clearly designated by the posting of such on or near the entry door of each facility."]
It will be good to have clarification/interpretation; it sounds like it has to be clearly stated as gender neutral, which likely can be done with signs with the symbols, but you never know.
Thank you in advance for providing clarification on this legislation.
Above all, "Ask the Lawyer" strives to provide useful, plain-language legal information and analysis for the members of New York's regional library councils.
So before I delve into the background, legal analysis, and compliance tips I would like to offer in response to these questions, here are some useful, plain-language answers:
And with that said...let's delve.
First, let's check in with the legislation the member references, which was signed into law in December 2020, and went into effect in March 2021.
Called "AN ACT to amend the civil rights law and the education law, in relation to single-occupancy bathroom facilities," this legislation affects not only bathrooms in public spaces (like bars, restaurants, etc.), but also bathrooms in SUNY, CUNY, and all community colleges.
While the title and the text of the new laws may sound a tad dry, the "legislative memo" that accompanied it left no room for doubt as to the law-makers' aspirations:
Access to public spaces should not be a privilege. A person's sexual orientation and gender identity are not justifications to exclude individuals from public spaces, including bathrooms. The argument that transgender individuals must use the restroom that corresponds with their assigned gender at birth is discriminatory and wrong. New York State has been a safe haven for people from all backgrounds and beliefs, and we must recognize our role as a leader in the fight for transgender rights. Expanding the civil liberties of transgender individuals is a task New York must take up with pride. We must acknowledge that this issue is not about bathrooms, but is instead about fighting for a person's right to exist in the world free from harassment and discrimination. The California legislature recently passed the most progressive bill on bathroom access in the nation. Now is an opportunity for New York to join California in its efforts to protect transgender individuals and expand inclusivity and dignity for all. Modeled after
California's bill, this act would require all publicly accessible bathrooms, including those in public and private schools, restaurants, bars, mercantile establishments, factories or state-owned or operated buildings, to designate all single occupancy bathrooms as gender neutral.
The memo makes it crystal clear: the intent of the act is to protect civil rights.
This background is important to consider, because as we analyze how to comply with the new laws, the lawmakers' intent--sometimes called the "spirit" of the law--is relevant.
Any institution that must comply with the Americans with Disabilities Act ("ADA") should use the United States Department of Justice (USDOJ)'s standards for accessible design, including when creating the now-required postings to designate gender-neutral bathrooms.
The USDOJ's ADA standards are silent about gender-neutral space. However, they do set parameters for signage, including, as the member writes, use and placement of Braille and signs with "tactile" (can be discerned through touch) elements.
Among what is required (sorry if this language is opaque, I don't write the guidance, I just quote it):
Tactile text descriptors are required for pictograms that are provided to label or identify a permanent room or space. Pictograms that provide information about a room or space, such as "no smoking," occupant logos, and the International Symbol of Accessibility, are not required to have text descriptors.
703.4.2 Location. Where a tactile sign is provided at a door, the sign shall be located alongside the door at the latch side. Where a tactile sign is provided at double doors with one active leaf, the sign shall be located on the inactive leaf. Where a tactile sign is provided at double doors with two active leafs, the sign shall be located to the right of the right hand door. Where there is no wall space at the latch side of a single door or at the right side of double doors, signs shall be located on the nearest adjacent wall. Signs containing tactile characters shall be located so that a clear floor space of 18 inches (455 mm) minimum by 18 inches (455 mm) minimum, centered on the tactile characters, is provided beyond the arc of any door swing between the closed position and 45 degree open position.
703.4.1 Height Above Finish Floor or Ground. Tactile characters on signs shall be located 48 inches (1220 mm) minimum above the finish floor or ground surface, measured from the baseline of the lowest tactile character and 60 inches (1525 mm) maximum above the finish floor or ground surface, measured from the baseline of the highest tactile character.
Meanwhile, in the State of New York, the State Building Code Section E 107.3 reinforces these signage requirements.
What does all this mean? Ideally, the posted signage designating a gender-neutral, single-occupancy or family assist restroom should have either a pictogram with a tactile element on it, or Braille text descriptors describing the room, and with regard to placement, that sign's center should be no less than four feet and no more than five feet above the floor.
Now, let's talk about symbols (as opposed to words).
What if your library wants to use a symbol (or "pictogram") instead of the phrase "gender-neutral"? This is a tough one. If you still have those USDOJ ADA standards open, take a look at how they refer to use of symbols.
First, you'll see that there is a "universal" symbol, set by the International Organization for Standardization (the "ISO") for designating a bathroom that meets the standards for wheelchair access:
Use of this "universal" symbol is described in both the USDOJ ADA guidelines, and the NY State Building Code.
Next, you'll see that the ISO does have a symbol they have developed to designate that a bathroom is "unisex":
Now, this is just me saying this, so take it with a grain of "persnickety lawyer" salt, but "unisex" is not the same as "gender neutral." Further, a symbol combining the binary designations for "female" and "male" is not quite consistent with an initiative seeking to respect the innate dignity of people who might not identify with either category.
So, until the ISO develops a symbol for "gender-neutral" that doesn't rely on a binary construct of gender, I advise considering not using a symbol at all (for the "gender-neutral") part. Give the ISO time to craft a more appropriate pictogram.
That said, if you are a library lucky enough to have a bidet in your single-occupancy, gender-neutral, family-assist bathroom, the ISO might still have an option for the "bidet" part:
--Just make sure that as required, the pictogram has a tactile element.
With the legislative record clearly establishing that this change to the law is about civil rights, and with libraries eager to emphasize their missions of access and inclusivity, the signage for a library's gender-neutral bathroom is a good one to demonstrably get right.
However, as you can see from the "Legal Analysis" above, "getting it right" can be complex.
As just a final example of that complexity (and to delve a bit more into one of the member's questions) here is a section of the New York State Building Code's Section 2902, on the prescribed ratio of plumbing facilities for libraries (including total amount of lavatories, amount for men, and amount for women):
What is the take-away from this chart? If your library is struggling with how to designate, plan, or build the right number and/or type of bathrooms, don't be surprised: this stuff is not simple, and it takes consideration of old/new construction, your status as a tenant or building owner, local law, and a host of other factors. Which is why (in addition to your lawyer), a local architect, or a planner with experience on civic and public assembly spaces, is a good person to reach out to.
Architects and planners are the people who live and breathe place-making and ordinal signage. By design, these are professions that think about how people organize buildings, and how people can feel welcome in spaces. An architect or planner with experience in your area will know exactly how to not only designate the space, but to order the signage, and assess the required number of facilities. Since there is no "one size fits all" answer to some of these issues, a library needs to consider a custom fit.
If you aren't sure where to start on a quest for an architect or planner, a call to your local "Permits" officer might yield a name or two, and if there is a local college, their librarian might be able to connect you to the "head of planning."
I have included a lot of analysis in this answer, because in my experience an audience of information management professionals can handle it.
That said, after all the above analysis and commentary, the answers regarding a gender-neutral, single occupancy/family assist bathroom are simple:
Thank you so much for a thoughtful array of questions, I was very grateful to be able to spend some time delving into this topic.
 If you're thinking "Hey, they left out public schools!", the law impacting those was passed earlier.
 Confession: it is driving me CRAZY that this legislation did not include a hyphen between "gender" and "neutral." I refuse to continue the mistake and will use a hyphen unless I am directly quoting the law; to do otherwise would be to be "grammar-neutral" (not to be mistaken for a "grammar neutral" which is someone who mediates grammar disputes).
 An organization that is "famous" in the same way the G8 or the IMF is "famous": generally known, and pervasively powerful...but not many people can succinctly define what you do on a daily basis.
 Find more guidance on standards for using this symbol at ISO here: https://www.iso.org/obp/ui/#iso:grs:7001:PI_PF_006; the general search tool for international symbols is: https://www.iso.org/obp/ui/#home
 Get it together, ISO!
 Section 2902 also states that any single-occupancy bathroom may be deducted proportionately from gender ratios. It's almost like they knew what was coming!
(Question has been slightly modified to maintain anonymity)
We have been digitizing restaurant, hotel and other menus from our historical menu collection and have been following standard copyright protocols – but also making many case-by-case decisions based on things like whether of the establishment still exists, etc. (With only a couple exceptions I made for a faculty member who had permission of the restaurant owners, I haven’t scanned any menus from after 2000.) Our public collection site is used by students and researchers around the world.
My question is: can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes? If we do scan them, would we need permissions from every single chef/owner? The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.
Menus can be works of art.
"Art" of course, is a subjective term, and has no precise, stand-along definition in copyright law. So more importantly for this discussion, a "menu" can be a composition of such originality and substance, that it is protected by copyright law.
This protection can be for the work as a whole (the entire menu), and/or it can be for individual elements in the work. It can cover stand-alone elements (such as a cover photo image or flavor text used to describe a signature dish), and, in these days of Slice and Grubhub and Yelp, it can be for the menu as a physical object, or a version published only online. It can cover the original art in a trademarked logo, whether that art was generated by an independent contractor or employee.
Recent case law illustrates how these protections can be sliced-and-diced, and also shows just how nasty litigation over restaurant copyrights and trademarks can be. Menus and the logos and information they carry can be the apex of a restaurant's brand, reputation, and intellectual property. So the member is right to take this concern seriously.
With care, however, the act of creating an online archive of carefully curated restaurant menus, for well-articulated academic purposes, should be able to find protection in the line of "fair use" case law building on the 2nd Circuit's 2015 decision in Authors Guild v. Google, which relates to the creation of online repositories.
As the Court found in that case: The purpose of the copying [to create the online resource] is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.
The key to scanning and incorporating menus still under copyright protection into an archival database of menus at a library or educational institution, while taking advantage of the fair use defense set forth in Authors Guild, is to do so in a manner that:
There are numerous techniques to achieve this.
First and foremost, the purpose of the archive should be developed and set forth on the archive in clear, well-developed terms. The database should not look like a group of menus simply gathered together by a person who happens to have made a collection of his favorite restaurants. The cultural value and purpose of the collection should be stated in very certain terms, and consistently repeated throughout the archive's pages, cataloging text, and metadata.
Second, the function of the archive should be such that users can demonstrably benefit from the aggregated content and information. For instance, menus should be searchable by geographic region, type of food, notable characteristics, and other relevant factors...giving the aggregated content value beyond what is created by each individual entry.
Third, the archive should adopt a standard approach to assessing and depicting the authorship, ownership, and copyright status of archived works.
Fourth, the images themselves should be created so that a third party using the image cannot create a credible replica of the menu or the original originating restaurant's logo or copyright-protected content. A picture taken with a border, or the use of a watermark indicating that the image is part of the archive are some common ways to do this; technology creates many other and evolving options.
Fifth, since it will help mitigate damage in the event a copyright owner simply refuses to believe an archive has made a "fair use" of their content, the overall approach of the collection should be assessed using your institution's fair use assessment form, and that record should be kept. Why is that? Being able to demonstrate a good-faith effort to establish that the use is fair can help mitigate damages, and can be a deterrent to a plaintiff pursuing a lawsuit all the way to a verdict.
Sixth, the "Terms and Conditions" of your online archive should feature a process for owners to report good-faith suspicion of copyright infringement, and your institution should have a registered agent as provided by the DMCA. An example of this type of statement can be found in the DPLA's Terms and Conditions as of April 15, 2021: https://dp.la/about/terms-conditions. 
Seventh, if you haven't, consider the benefits of registering an agent under the DMCA, and if it's a good move for your institution, register (you can look up and see if your institution already has an agent here: https://www.copyright.gov/dmca-directory/).
And finally, to the extent possible, for steps five, six, and seven, work with your institution's attorney, who can connect all these steps and the academic activity they support with your institution's insurance and risk tolerance.
So, with all that as background, here are my answers to the questions:
Can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes?
Answer: Yes, copyright-protected materials can be duplicated if the use is fair; by following the cautions above, an institution can set itself up to both create a highly useful and important archive, to claim fair use, and to mitigate damages in the event of a worst-case scenario.
If we do scan them, would we need permissions from every single chef/owner?
Answer: if the use is fair, there is no need for permission...and in fact, asking for it could be introduced by a plaintiff as an admission that you concluded you needed permission.
Now, a word of caution on this: if your archive is part of a larger institution, the other departments of that larger institution need to be alerted that just because an image is on your archive, that doesn't mean they can use it for a catalog cover, a web site image, or a poster advertising your institution. After all, a use that is "fair" for an academic archive might not be so "fair" if it is on a brochure for a program or event (even if the program or event is not subject to a charge). This is especially true since menus will often feature not only copyright-protected material, but trademarks (which, unlike copyrights, do not expire if they are in continuous use).
The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.
Because the menus themselves can be protected by copyright--as well as the individual elements in the menus--that "murkiness" is here to stay. Unless a menu is clearly in the public domain, it is best to assume that it--or some part of it--is subject to copyright, and remember that a restaurant's name and logo are its intellectual property, too. The reason an archival initiative can make this assumption, and still hope to achieve its objective, is because by carefully and deliberately assembling those individually protected elements, they are creating a broader work with value beyond each individual element.
The value of a collection of menus is likely obvious to librarians, academics, and information managers. But just as an example of how valuable such a resource can be, even outside the field of scholarship, I'll share a personal anecdote: while working on a case for a neighborhood fighting a fast food drive-thru in their dense, urban neighborhood, I used the New York Public Library's digital collection to find a menu for the "Little Harlem Hotel" in Buffalo NY. The menu was part of the research we used to make the case that the neighborhood has a history worth fighting for.
We lost the case, but that menu helped create a vivid argument about the history of the neighborhood and its vibrant legacy, and that argument was energized by the archive. An online archive of menus can be important in countless ways; finding the right legal recipe to make it happen is worth it.
Thank you for a great question.
 "Visual art" does, and of course "art" as a general term is used regularly in copyright jurisprudence. But "art" remains a subjective term.
 Yep, that's a "flavor text" pun. Yum.
 The 2019 case Khan v Addy's BBQ LLC, (419 F Supp 3d 538), involving former business partners operating BBQ joints in Tea Neck, NJ, and Elmont, NY, shows just how convoluted these things can get. Another case from 2018, 784 8th St. Corp. v Ruggiero, 2018 US Dist LEXIS 5405 shows how copyright ownership to logos and menus can change based on who did the work; also, it shows that if you are in business with family, it is important to have a good lawyer!
 Authors Guild v Google, Inc., 804 F3d 202. The Supreme Court denied a chance to review this case, leaving the 2nd Circuit's decision intact.
 The database created by Google in the Authors Guild case was not a straightforward online archive like the one described by the member here. However, the case is still applicable in several important ways.
 I know a professional archivist would not do this, but this is a very important distinction.
 Other "relevant factors" of which I, a food philistine living in the city that invented Buffalo Wings, and originally from the city that invented Chicken Riggies and Half-Moon cookies, am shamefully unaware.
 The approach of the Digital Public Library of America ("DPLA") happens to be my favorite, seen here in this document about the Erie Canal, but is not the only standard out there. What's important is that the institution identified a system that works for it--and then consistently uses that system.
 It would be deeply ironic if the DPLA sent me a "cease and desist" for linking to their excellent resources.
 Since every archive or library has a different structure and different approach, while inspiration can be drawn from fellow institutions, the final approach and policies should be reviewed by a lawyer for your institution whenever possible. As just a threshold issue, state-affiliated institutions have different risk considerations than independent not-for-profits.
 It hurt to lose, but the damage to the neighborhood hurt more.
We are a municipal library and the building is owned by the county. The county will be installing security cameras outside the library in multiple locations for safety reasons. These cameras will not be regularly monitored unless there is a reason to consult them. We will not be viewing the footage per a patron’s request. They will be maintained by our county facilities staff and consulted only in cases where a criminal act was committed.
I have two questions related to this.
1. What type of permanent notification do we need to post about the use of cameras?
Many libraries, for a variety of good reasons, have security cameras. Some libraries control those recording systems; others do not. But no matter how they get there, when cameras are in a library, the questions posed by the member are critical.
Here is why: every library in the State of New York is bound by ethics and law to safeguard patron privacy. Those obligations start with the ethics of the American Library Association and the New York Library Association, assuring patron privacy; these ethics find legal teeth in New York Civil Practice Law and Rules and the Public Officer's Law.
At the local level, patron privacy is often reinforced in a library's ethics statement, bylaws, and policies. The practical duties of patron privacy are found in job descriptions (particularly of directors and IT professionals), and in membership terms between libraries and systems. And it is part of every new employees' on-boarding.
Because librarians and library leadership are so aware of this privacy obligation, and because assurance of patron privacy is a key component of information access, protecting patron privacy is often referred to in the library community as nigh-unto-sacred duty. So sacred, in fact, that I have met more than one librarian willing to go toe-to-toe with law enforcement seeking unauthorized access to patron data.
While it takes a certain type of gumption to stand up to law enforcement, it takes another type (equally critical, but not as concentratedly defiant) of gumption to think about patron privacy in the context of software, landlords, and security cameras. One takes a willingness to take a stand in the moment. The other takes a willingness to think about details, to leave nothing to chance, and to ask a lot of very specific, very persistent questions.
Both of these types of gumption are critical to the modern librarian, but only one gives you an easily dramatic answer to the question "how was your day?"
We'll leave the dramatic aspect of this for another time. Below, please find a boring--but vital-- checklist of steps and language to help a library answer the questions posed by the member, when a landlord is using cameras trained on library premises:
Step 1: Assess what the library's lease says about security and use of cameras
For libraries with landlords (remember, your library has a landlord even if you only pay a token amount of rent,) it is important to have a written lease.
Why? Because, among other critical things, that lease can provide clarity about who provides the on-site security (including a camera system) and set the stage for how the landlord and the tenant will manage security-related details.
In this case, the member has clarified that the security system will be controlled by the municipal (county) landlord. Here are the details posited by the member:
These cameras will not be regularly monitored unless there is a reason to consult them. We will not be viewing the footage per a patron’s request. They will be maintained by our county facilities staff and consulted only in cases where a criminal act was committed.
These details, upon which the library will base its own actions, should be confirmed in the lease. Such confirmation should include, whenever possible, a marked survey or map of the property, showing the limits of the camera's line of sight.
Step 2: Assess if the lease terms and security camera arrangements promote the privacy commitments of the library
Just a note: while a municipality may procure and install a camera system with the intent to only monitor it "in the event of alleged criminal activity," in my experience, there is no way to enforce such a restriction, and some risk that the use of the cameras could change over time.
A library can't control this. That said, when a camera system is installed, a library can request assurance that the municipality's internal policy, governing the cameras, include language:
Once a library performs these two steps, it can answer the member's two questions:
First question: What type of permanent notification do we need to post about the use of cameras?
Once the library has written assurance that the landlord's use of recording technology will not result in the creation or disclosure of a library record, it is up to the director and board if, or how, your library should alert the community.
Personally, as a patron, I would appreciate a "courtesy notice" such as: "Your library records are confidential. Please know that while our landlord has security cameras in [ZONES], the library does not allow recording that could impact patron privacy inside the building."
OR (if the library makes use of its own security cameras): "Your library records are confidential. Please know that our landlord has security cameras in [ZONES] and may use those for security purposes, but any security camera record maintained by the Library that shows use of library services is considered confidential and is used for library purposes only."
For instance, after the analysis is done, the board can note in the minutes: "Regarding the landlord's use of outside security cameras: As of DATE, the Library's landlord, NAME, will have security cameras observing certain outdoor areas, including library property. The Library has verified that its lease, and the landlord's internal policy, prevent the landlord's security cameras from generating or disclosing confidential library records. The public will be notified as to where the cameras are recording, and that such recordings are not confidential library records."
I appreciate that this review/confirm process can be a bit clunky. However, it is also an opportunity to alert a critical partner (a landlord, and sponsoring municipality) to the importance of library-patron confidentiality, and to assure the public that privacy is a priority. By seizing the moment to confirm that privacy is being properly considered and enforced, a library not only assures its ethics and legal compliance, but can create an ally in that eternal (and important) fight.
I hope this approach is helpful.
 As found in the NYLA Code of Ethics: " III. We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted."
 CPLR 4509 states: “Library records, which contain names or other personally identifying details regarding the users ...including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.”
 If it's not, it should be.
 You guys are so cool when you do that.
 Like the member is, here.
 Generally, this token rent is placed at $1/year. Just once it would be fun to see a more random number, like $1.26/year.
 Such as insurance, hours of operation, emergency procedures, notification in the event of injury, protocol for repairs, capital improvements, etc... For more commentary on this, see https://www.wnylrc.org/ask-the-lawyer/raqs/166 about having any MOU with a sponsoring municipal entity.
 If security cameras are aimed at a curbside pick-up location, the library should consider if the recording is a library record.
 Forbidding recording in a public library is a controversial topic, I know. This language is written to address recording that can impact patron privacy.
 Hey, I managed to make careful attention to minutia sound dramatic!
When is it advisable for an author/creator to register a work with the copyright office?
I work in higher education. Students will sometimes ask for information on copyright protection for a thesis (written, not performance). Sometimes faculty will ask about protecting various devices of education such as a syllabus, exam or spreadsheet.
The Copyright Office used to promote the idea that works that are fixed do not necessarily need to be registered. When is registration a good idea? What does registration do for copyright holders?
There are some really good, separate answers to this question. I'll present them in the order I think would be useful to students and academics.
Answer #1: Clarity of ownership
Students own the academic work they author. Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."), the end result--if the student is the only writer--is the student's.
Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work. A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.
Answer #2: Publicly establishing co-authorship
Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together.
This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."), the end result--if they combine their work into a single whole--is the students'.
This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other. So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.
Answer #3: Being able to quickly fight infringement
Before I dive into this one, a bit of commentary on copyright and academia:
The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.
As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong.
What do I mean by this? While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.
Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.” With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.
The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.
Answer #4: Money
My final answer is 100% financial.
As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register? In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory" damages, actual damages, and attorney's fees, they need to have completed the registration of a published work prior to the infringement.
Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit. So, it's another tool in the toolbox of copyright enforcement.
I believe answers "1" through "4" take care of the member's last two questions. But what about the first one:
When is it advisable for an author/creator to register a work with the copyright office?
I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.
For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.
For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.
And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property. After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.
When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.
Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.
Thank you for making sure today's students are thinking about their work and their intellectual property.
 Assignments like this are why students have either loved or hated my classes, AND why I never have to rely on a utility like "Turnitin" to detect cheating. You just can't fake selecting a favorite civil rights case.
 Back when I was in law school this type of group work drove me crazy. I am a good team player professionally, but group academic work brought out the lone wolf in me.
 For example, a person who takes photos at a "Black Lives Matter" march, hoping the images will boost support for criminal justice reform, finds that their photos are being used by a political candidate who portrays the marchers as "the enemy."
 To carry forward my example, license for the photos could say "© NAME, 2020, to be used only with attribution and only after written permission. For permission, please write to ADDRESS. The author generally gives permission to those whose use will align with the author's values and agree to attribution."
 An injunction is a court order to "cease and desist" infringing use of the work.
 "Statutory damages" are those big numbers you used to see at the beginning of movies on video and DVD. And although both mediums are quickly becoming a relic of the past, damages with fixed amounts set by law are not.
 The "actual" costs and damages created by the infringement.
A high school band has purchased music with permission to perform. The music teacher has requested that the performance be shared on the school's website. From my understanding, the performance may be shared live / streamed (permission to broadcast) via the school's web page but may not be recorded and then posted to the website. The public performance relates to the site/building and not to the World Wide Web.
Please confirm whether my understanding is correct.
Your understanding is correct, but there are three additional details it is helpful to consider in this type of situation:
First, when a school confronts a concern like this, it should take a careful look at the license (the permission to use a copyright-protected composition) it purchased.
This is because a license for sheet music can convey not only permission for on-site performance and broadcast, but also "recording" and "publishing" (posting). I have observed that the range of these permissions will vary not only between publishers, but even between songs at the same publisher. So, before recording (or deliberately not recording), check the fine print; you might have more (or less) permission than your district thought.
Second, it is good to consider why the school wants to make the recording and post it on the school website. Is it to simply showcase the band on a page dedicated to the school's achievements? Is it for fundraising purposes? Or is it posted as part of a student newspaper or student club newscast? If the post is part of an academic endeavor--especially one related to commentary or gathering news--posting part of a recorded performance could be a fair use.
And third--though still on the topic of fair use--it is important to remember that "Circular 21" pertaining to "Reproduction of Copyrighted Works by Educators and Librarians" confirms that the Copyright Act allows educators to make:
"A single copy of recordings of performances by students...for evaluation or rehearsal purposes...."
Now, under no circumstances am I saying that this provision gives a school permission to record and publish (post) a copyright-protected musical work. But a copy that is created incident to streaming can be retained by the school or teacher, and perhaps posted to an intranet, if they plan to use it for rehearsal or evaluation later.
The important take-away from all of these is: your school may have options from not only within but additional to the license. By assessing the precise permission your school received, the reasons for recording, and the reasons for posting, a school can consider their full range of options.
Of course, what copyright law can give, contract law can take away. So, if your school has secured a license with a specific agreement that you will not make and post a recording, remember that's a contract term it agreed to, even if fair use would otherwise authorize the use.
I know, I know, thinking about copyright while planning to make the most of a performance can feel like allegro, adagio, adagio, allegro...
Just andante, like the question models, plan what you need, and you'll find a good pace!
Thank you for a thoughtful question.
 I know "streaming" and "recording" are different, but as a technical matter, "streaming" does create a digital copy, even if it is fleeting.
 This answer does not consider limited posting on an intranet, although I'd argue that with planning such posting could be consistent with the CONTU guidelines for retaining a copy for rehearsal or evaluation.
 This is why people negotiating for license content should always be trained to not negotiate away rights your district has by law.
I am writing to update the excellent advice on the RAQ page from November 2020 in regards to the retention of health screening records in a school district, local government, or state agency (under a separate retention schedule.)
I just called the state archives to confirm the retention period of library employee daily health screenings using LGS-1. They referred me to item 792c (positive health screening) with a 6 year retention and 792d (negative health screening) with a 1 year retention. (pg: 210-211 in the schedule.)
They have also updated their guidance on records related questions for COVID-19 http://www.archives.nysed.gov/records/documenting-government-response-to-covid-19
Thank you for answering the original question in November. I hope this update to the response is helpful.
First: thank you very much for your kind words and feedback. Both are very appreciated, and I encourage users of the service to keep a dialogue going--the service is only as good as the questions and input that inspire it.
Second, just to recap my advice from the November, 2020 "Ask the Lawyer" referenced by the member, it boiled down to:
"With no clear bucket and no clear requirements, at this point, I have to answer that retention of proof of screening should be permanent."
Time, as they say, has marched on, and as the member states, the State Archives has offered some additional guidance on this topic.
Here's where I am at: I have reviewed the additional information referenced by the member, and despite that input, I am just not confident that the time periods in LGS-792 "c" and "d" are the right fit for records showing a public library's routine use of employee screening as part of their Safety Plan, and I continued to advise that retention be permanent (at least for now).
Here are the three reasons for my continued hesitation:
Reason 1: LGS-1 792a-f have a clear application, and I am not certain a pandemic response is quite it
I appreciate that 792c, which is part of the "Public Health" section of the LGS-1, applies to a "positive report" of a screening, and 792d is for a "negative report of individual screened."
However, as the remaining sections of 792 show, 792 applies to screenings conducted for public health initiatives that also (might) use: summary reports, master indices of "participants," informed consent forms, and a log used to compile data extracted from the screen.
Logs, data crunching, and "informed consent" are all part of a public health agency's toolbox for public health initiatives in response to concerns such as the transmission and impact of a dangerous virus like COVID-19.
But unlike the majority of such initiatives, which tackle challenges such as STD's, tuberculosis, and cancer, employee health screenings for COVID-19 symptoms are part of a much larger effort conducted as part of an emergency response.
Reason 2: Emergency response records under the LGS-1
Because of the "emergency response" aspect discussed above, when I first reviewed the original question, I considered the applicability of LGS-1 802 ("public health incident files") which pertains to "records related to public health emergencies, communicable disease occurrences, and epidemics."
Under 802 (also referenced in the State Archive's resource linked by the member), the retention period for "[s]urveillance, investigation, and response records" created in response to an epidemic is THREE YEARS "after [the] outbreak has abated."
Are a public library's employee health screenings "surveillance, investigation, and response records" during a "public health incident?" Since employers are required to report the names of employees who screen positive to their local health department--who then engage in contract tracing and outreach--I believe they could be, which debatably makes the retention period of employee screenings (positive or negative) three years.
However, even three years doesn't sit right with me. Here is why:
Reason 3: The other reasons to keep the records
My original answer went a little beyond the scope of required retention, addressing not only the precise retention period that might be required by the NY Arts & Cultural Affairs Law, but also, the other factors a public library might wish to consider when determining how long to retain the records of employee screenings.
These "other factors" include legal claims based on alleged non-compliance with required pandemic procedures, some of which could underlie personal injury claims, alleged civil rights violations or even a contract violation (which has a six-year statute of limitations).
In the body of New York case law involving personal injury, civil rights, and contract claims against public libraries, one can see an interesting pattern: sometimes public libraries are treated as government agencies, and sometimes, they are not. This is why public libraries are often required by their municipality to have their own insurance. This also means that while they might be held to the document retention standards of municipal agencies, sometimes, they won't have the legal protections of one.
My concern was--and strongly remains--that a process of purging documents that could demonstrate use of and adherence to screening programs will only disadvantage a library, even if the lost record was properly disposed of under the LGS-1. There are reasons beyond required retention to keep those records. And without a clear directive on retention, I think it is best that a library keep a close hold on them.
I am sure no public library that documents input from State Archives about the applicable retention period and then purges negative screens after 1 year will be met with a penalty from the State.
But as you can see in "Reason 3," the State is not my primary concern.
With the benefit of 5 additional months since my original answer, I will take advantage of this chance to refine it to revise my above-quoted statement and change it to:
"Even when we get clear requirements, I have to answer that retention of proof of screening should be permanent, or at least until your library's attorney has determined that any advantage to the library created by retention is past, and your library has determined they are of no historical significance."
Thank you very much to the member for giving me the opportunity to re-visit this issue and to offer this updated (and hopefully improved) guidance. I am sorry to cause you more use of storage room, but gratified to have the chance to offer this analysis!
Afternote: Below are the relevant excerpts from LGS-1 792 and 802:
792 CO2 508, MU1 472, MI1 409
Results of screening programs, except lead poisoning
a Summary reports on screening results: RETENTION: PERMANENT
b Master index or listing of participants: RETENTION: 50 years
c Positive report of individual screened, including statement of consent or participation and authorization for release of information: RETENTION: 6 years, or 3 years after individual attains age 18, whichever is longer
d Negative report of individual screened, including statement of consent or participation and authorization for release of information: RETENTION: 1 year
e Log or other working record of screening and testing, used to compile statistics and other data: RETENTION: 1 year
f Anonymous H.I.V. test results and related records: RETENTION: 7 years
NOTE: Identifiable H.I.V. related records are covered by item nos. 743 and 745, and related laboratory records are covered by items in the Laboratory subsection.
Public health incident files, including records related to public health emergencies, communicable disease occurrences, and epidemics
a Surveillance, investigation, and response records: RETENTION: 3 years after outbreak has abated
NOTE: Appraise these records for historical significance prior to disposition. Records of unusual disease occurrences or epidemics may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.
 This "Ask the Lawyer," like the original, avoids the issue of whether a non-association library has decided it must follow its local government's safety plans, or generate its own, and under which order or mandate that safety plan and the library operates. The last footnote will show you why!
 The Law that empowers the Archives to develop the LGS-1.
 FOIL and various claims of civil liability being the top reasons.
 What I said was: "Most people know that when you leave a paper trail, it can (with many exceptions) be used for—or against—you in court. In the employee data arena, common uses of such evidence are labor law and civil rights claims."
 For a good case illustrating this, see the chain of cases here: Gilliard v. New York Pub. Library Sys., 597 F. Supp. 1069, 1074-75 (S.D.N.Y. 1984) New York Public Library v. PERB, 45 A.D.2d 271, 274, 357 N.Y.S.2d 522 (1st Dept. 1974), aff'd, 37 N.Y.2d 752, 337 N.E.2d 136, 374 N.Y.S.2d 625 (1975); Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982)); Breytman v. New York Pub. Library, No, 05 Civ. 10453 (RMB) (FM), 2007 U.S. Dist. LEXIS 12769, 2007 WL 541693, at *2 (S.D.N.Y. Feb. 21, 2007), Breytman v. New York Pub. Library, Dyckman Branch, 296 F. App'x 156 (2d Cir. 2008)
 Unless your library hasn't had a safety plan and hasn't been performing screenings, in which case, talk with your lawyer and consider the best way to mitigate your risks!
If a nonprofit organization is unionized, may they have volunteers as part of a collaborative effort with another organization for a service that is not currently provided? For example, could they collaborate witha volunteer organization for an outreach service that is not currently provided.
This is a very good question, since the use of volunteers to supplement or replace work typically performed by union employees can most definitely be a violation of a collective bargaining agreement.
In one case from 1981, a school district on an "austerity budget" used volunteers to set up (and then clean up) district facilities for student sports--a task typically performed by custodial workers under a collective bargaining agreement ("CBA"). An arbitrator found that the district's use of volunteers to perform the unionized workers' tasks violated the CBA, and the workers were owed pay for the work they should have had the opportunity to perform.
That said, schools, libraries and not-for-profits with unions routinely use volunteers for all sorts of things; clearly, not all use of volunteers risks violation of a CBA. So, my plain answer to this question is: "yes, if the library is careful."
The rest of this reply sets out what I mean by "careful."
First, any not-for-profit has to exercise caution when using volunteers, because (as the member's question points out) there can be concerns that some use of volunteers violates the labor law.
The NY Department of Labor has really good basic guidance on this at https://dol.ny.gov/system/files/documents/2021/03/p726.pdf
In relevant part, that guidance says:
Unpaid volunteers [at an NFP] may not:
• Replace or augment paid staff to do the work of paid staff
• Do anything but tasks traditionally reserved for volunteers
• Be required to work certain hours
• Be required to perform duties involuntarily
• Be under any contract to hire by any other person or business express or implied
• Be paid for their services (except reimbursement for expenses)
Considering this guidance, when I work with libraries and other not-for-profit organizations who are considering using volunteers (no matter what the work for the volunteers will be, and whether or not there is a union), I advise that the organization have a volunteer policy.
The volunteer policy should cover all the concerns raised in the bullets above, as well as address risk factors such as placement letters confirming the terms of volunteer service, safety, insurance, and when a library using volunteers will conduct background checks.
Second, when I work with libraries and other not-for-profit organizations who are considering using volunteers, who also have one or more unions representing their employees, I stress the need to work with the union(s) pro-actively to confirm that an activity performed under the volunteer policy is not regarded as replacing paid/union workers.
There are a number of ways to achieve this confirmation.
The most formal way would be accomplished through a broad exclusion clause in the union contract(s) so every program does not present an ad-hoc task (but that could be a hard thing to fight for at a negotiation). A sample clause for that could be:
It is understood between the Parties that volunteer service performed per the Library's "Volunteer Policy" to enable events and programs that are not part of the Library's Plan of Service are not regarded as replacing or supplementing union members.
However, if such a clause is not a part of the standing collective bargaining agreement, a simple exchange of emails, or a more formal signed memorandum addressing only one type of volunteer activity, can be used to confirm this understanding.
The goal in all cases is to have clarity about what service is being performed by the volunteers, and to be able to show an affirmative agreement that it is not negatively impacting the experience of the workers in the union (which risks assertions of breaching the contract). Since the perception of "negative impact" (and breach) can vary from place to place, this is not an understanding to pursue after-the-fact nor without a solid understanding of the legalities and subtleties of the situation.
Third, even if a union is amendable to it, I would caution a library against using volunteers for any service that is part of a library's Plan of Service, since that can undercut the data needed to support adequate state/local funding. Volunteers can be invaluable assets, but a library should always be able to function as required by law without them.
Fourth, if all the other cautions and no-no's listed above check out, it is vital to have a very clear agreement with the collaborating organization outlining the nature of the service, and each parties' roles and responsibilities for it. This ensures the risks and liabilities posed by offering any program to the public are properly balanced, and the library isn't taking risks for the actions of volunteers provided by another organization. I know it sounds impolite, but when it comes to volunteer services from a third-party, a not-for-profit must look a gift horse in the mouth.
In many ways, it's a new world out there. For libraries seeking to innovate and work with other organizations to co-produce new programs, the above-listed cautions can set the stage for using volunteers without worrying about violating a union contract.
Thank you for a good question.
 (Onteora Cent. Sch. Dist. v Onteora Non-Teaching Empls. Asso., 79 AD2d 415 [3d Dept 1981])
 After the original decision cited in footnote 1, this case takes a lot of twists and turns through different rulings involving the education law and the authority of arbitrators. But the takeaway for purposes of this answer is: "Yes, use of volunteers can violate a CBA."
 For this reason, whenever possible, an attorney who knows the volunteer policy, knows the details about the service to be performed, and knows the union contract, should be consulted in advance.
 Of course, libraries and other organizations can host volunteer services (have them on site, but not co-sponsor them) provided by other organizations (such as Literacy Volunteers) without having to worry about these issues quite as deeply. "Hosting," rather than "collaborating" is a way to work with other organizations (and their volunteers) while not exposing a library to an assertion of violating the labor law, a CBA, or incurring unnecessary liability.
My questions involve background checks for potential new employees, fingerprinting, developing policies, procedures, and best practices.
Do background checks, fingerprinting, etc., need to be done for all positions? Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants? Can the background check need to include a financial check and a legal check?
And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well.
This...is a big question. It's only three short paragraphs. But it's BIG.
It's "BIG" because the risks of getting this topic wrong are immense--from not only the obvious risks involving legal concerns, but risks involving ethics, privacy, and the goal at the heart of the issue: safety.
It's also BIG because the phrase "background check" is not tied to a precise or static definition. When someone says "background check" in the context of employment, here are just a few of the things it could mean:
Each of these "checks" comes with a wide array of legal requirements--or typical legal cautions--governing its use.
For all types of checks, the institution using them should have a clear policy governing what jobs require them, and how such records are evaluated, maintained, and disposed of.
And finally: when developing, implementing, and routinely using any type of background check policy, an organization is wise to take care that it is not incorporating factors that can be shown to disproportionately negatively impact (i.e., discriminate against) a particular category of applicant.
Okay, with all that off my chest, let's answer the actual questions.
Do background checks, fingerprinting, etc., need to be done for all positions?
The degree to which background checks and documentation of identity must be performed are governed by two things: what is legally required, and what the risk management practices of an institution dictate.
These two factors mean that practices will vary from place-to-place. A librarian working within a public school district in the state of New York will be subject to a criminal background check and must be fingerprinted just as any other regular employee within their district. A librarian at a public or association library is not required by law to have a criminal background check, nor to be fingerprinted, but an institution could decide, for risk management purposes, that a position requires that level of scrutiny for safety and security.
Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants?
There is no requirement in the law that a job advertisement has to disclose a background check in the job advertisement. However, prior to obtaining and using any information from a third party whose business it is to provide background information, an employer must notify an applicant; this notice must be in writing and in a stand-alone format. Further, before a negative decision is made based on such information, it must be disclosed to the applicant. A good resource on this is the Federal Trade Commission, but the third party provider, if they are a true professional, will provide the forms for each of these steps.
Now all that being said, it may be that some local hiring procedures or collective bargaining agreements require the disclosure of background checks in a job notice. Further, some employers may want to disclose their intent to use a background check to avoid surprising candidates further into the process. There is no bar to making such an early disclosure, but if given, such notices should be carefully drafted to avoid implying that those with arrests or criminal convictions will not be considered for the position.
Can the background check need to include a financial check and a legal check?
Yes, absolutely. A background check can include a credit check, a search for liens and other debt instruments, a review of criminal history, a consideration of driving record, and any combination of the items I listed at the top of this reply. Just be careful: if your library or system relies on a third party to supply that information, it must follow the guidance from the Federal Trade Commission (see that link in footnote 6).
Okay, at this point, I have to re-emphasize: before using any type of check, a library should have a policy covering that type of check, and that policy should cover all check-specific legal compliance, as well as: when the check is conducted, how it is conducted, how the information is used, and how the documents related to it are disposed of/retained. 
When developing such a policy, a good rule of thumb for an institution considering any type of background check is to be able to clearly answer the question: "Why are we doing this check?" While the reasons will vary, the answer should always relate to the essential functions listed in the job description, and the nature of your library.
For instance: if a position will create opportunities for a person to spend unsupervised time with vulnerable populations, a criminal background check and rigorous prior employer check is wise. If a position requires a particular credential, verification of that credential makes sense. And if you are hiring someone who will frequently have to drive the bookmobile, a motor vehicle records check is almost always imperative.
On the flip side: if a person is being hired for a job that doesn't require driving, a "current driver's license" should not be required. If a person will never have access to financial information or fiscal resources, a credit check is likely not necessary. And if a would-be library clerk has a DWI that is 20 years old--and no other criminal history--it is likely the conviction is not a basis to eliminate them from consideration.
Last question (and it's another biggie):
And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well?
"Mandated reporters" is a legal term under Section 413 of the NY Social Services Law. Professionals listed in that section are required to make a report when they:
"...have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, [OR] when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."
I have placed a list of the "Mandated Reporters" set by Section 413 below this answer. As you can see by reviewing the (long) list, library employees (unless their function also fits into one of the categories listed in 413) are NOT Mandated Reporters.
Of course, a library--or an institution that hosts a library--can decide and enforce via policy that its employees have an affirmative duty to report observed or suspected child abuse (or any abuse) that occurs on their property or in their programs. Many insurance carriers actually require their insureds to have such a policy.
[NOTE: If an employer has any type of "report abuse" policy, employees should be trained on how to make such reports no less than annually. The average person can have a trauma response to witnessing abuse, which can impact their ability to report it, as well as negatively affect their well-being. Routine training on how to recognize and report concerns, and experienced support for reporters, can help with this.]
Thank you for an important series of questions.
List of "Mandated Reporters" under Section 413 of the Social Services Law (also called "human services professionals"):
...any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; employee of a publicly-funded emergency shelter for families with children; director of a children’s overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility for children that is licensed, certified or operated by the office of children and family services; or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons credentialed by the office of alcoholism and substance abuse services; employees, who are expected to have regular and substantial contact with children, of a health home or health home care management agency contracting with a health home as designated by the department of health and authorized under section three hundred sixty-five-l of this chapter or such employees who provide home and community based services under a demonstration program pursuant to section eleven hundred fifteen of the federal social security act who are expected to have regular and substantial contact with children; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.
 This is why the phrase "Must have no criminal history" or the like must not be included on a job notice. For more information on this, visit https://dhr.ny.gov/protections-people-arrest-and-conviction-records.
 More info on this further into the answer.
 For some employers, this criteria is set by the provider of the organizations’ automobile and/or general liability insurance; this is especially true for organizations that use "company" vehicles.
 Unless there is a very obscure local law I have been unable to find. If you are aware of one, please email me at email@example.com.
 More information on how/when to give this notice is here: https://www.ftc.gov/tips-advice/business-center/guidance/background-checks-what-employers-need-know.
 Or other categories protected by law.
 That's right: I put that in italics, bold, and underlined it! An "Ask the Lawyer" first. No organization should ever "wing" a background check--of any kind. There is too much at stake.
 I know, there is a lot of room for interpretation in this language; when in doubt, seek guidance.
 I think of this as the "Penn State Victims Requirement."
 18 NYCRR § 433.2
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 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). No, right now, it should not be used for assignment of duties 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, 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. 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.
 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."
 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.
 Garden time! Can you tell I can't wait to get into the dirt? It always feels so distant, this time of year.
 As OSHA says, more research is required.
My institution has a small number of documents in our archives related to previous graduate students. Some are definitely educational records (transcripts, field placement evaluations). Then there are a) letters of recommendation received by the school or written by school faculty/administrators and sent to other schools, b) some correspondence between a student and the school/administration, and other items like c) copies of images or articles from student publications.
The documents span decades. Most --- but not all--- of these former students are confirmed deceased. Most items in this small group of documents relate to alumni who were/are notable, but in widely varying degrees.
A few of these documents concern a famous alum, who passed away. An outside researcher is asking about the documents related to that alum, and unfortunately, there are no surviving institutional access policies related to student records or unpublished correspondence in our archives. We want to respect copyright, FERPA, and the alum's estate.
For the educational records, I can't find clear guidance on how long FERPA access restrictions last, but other academic collections seem to allow access 50-75 years after the former student's death.
So, a few questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time. For instance:
And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors.
An educational institution considering levels of access and use of student-related documents has to consider not only these legal factors, but their unique policies. Factor in fame, and the stakes get even higher.
Because of that complexity, I could muse/write/talk on this topic for hours. But let's focus on the member’s specific questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.
If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.
But as the member points out, there are other considerations.
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,” then they are by definition "education records" under FERPA. That is because the FERPA is intentionally expansive. So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.
BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records. Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).
So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.
Which brings us to:
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts), but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.
For some, this may be a complex and far-reaching catalog of institutional history. For others, it may be simply hanging onto every program for every graduation ceremony. And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.
Whether formal and well-funded, or informal and not funded, every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. 
If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy. In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).
All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks, how does an institution create an archive that suits its stated purpose and conforms to institutional ethics? Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution.
I would like to thank the member for this question, it is a good one. And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!
Thanks. I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.
 See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights."
 Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.
 I am writing this on February 10, 2021.
 This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work. For that, see https://www.wnylrc.org/ask-the-lawyer/raqs/108 and https://www.wnylrc.org/ask-the-lawyer/raqs/91.
 What is "fame?" It's a notion that is taking odd journeys these days. As I said in footnote #3, I am writing this on February 10, 2021. Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat. I bet he can't wait for his 15 minutes to be over.
 "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.
 Here is the actual definition: "...those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."
 There are exceptions to this, of course...one big one being the records of campus police.
 I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass). I read her letters when I need a shot of pragmatic inspiration.
 Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet.
 For this question, "risk" is not just legal risk, but relational and reputational risk, too. After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it? (Of course, there might be). Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.
One of our member libraries has asked me the following question:
"We'd like to create an online catalog of drone pictures of our area. What do we need to consider? We know people are posting these pictures on Facebook, and we'd like to request permission to collect them all in a catalog on our website. Please let me know any technical issues or legalities we need to keep in mind. I think it's a good idea, but I don't know exactly how to implement it."
Are drone pictures copyright free as they are in other people's properties and cover large areas? Is it legal to post drone pictures without permission?
Thanks for any thoughts on this topic!
This is a cool idea—aggregating and cataloging drone shots. Someone fifty years from now will be very, very grateful for that type of work!
But as the member points out, there could be some technical or legal issues, namely: copyright, privacy, and security. How does the library make sure none of those concerns negatively impact the project?
Let's take those in order.
Legal Concern: Copyright
This one is pretty simple: with one exception, the copyrights to pictures taken by a drone are owned by the operator(s) of the camera, who usually (but not always) is the same person/people flying the drone. They are never the property of the area photographed (unless the property owner is also the photographer).
What is the "one exception" to that ownership? If the photographer is taking the drone images as part of their regular job, the copyright will belong to their employer (for example: if the drone shot was taken by the photographer to illustrate a story in a newspaper).
Once the library establishes the copyright owner, the only copyright-related impediment to including the images in the catalog would be if the owner had sold the copyright, or given someone else "an exclusive license," since that would mean they could no longer license the images to your library. Other than those complications, with the right agreement, permission and use should be simple.
Legal Concern: Privacy & Security
The "copyright" section, above, is fairly simple. Things are a bit more complex when it comes to privacy and security.
There is a huge array of drone-shot content that I could see risking a violation of privacy or a threat to security. Here are the most common I could rattle off at a cocktail party:
In addition to my "rattle it off" list, I did some research. If we leave out the restrictions of reconnaissance and targeting drones, there is one other drone-related “no-no” to be wary of:
In most of these concerns, it is not the act of including the images in the catalog that would be the legal issue--but rather, that the images themselves could be proof of a legal violation. We’ll address that more in the last section.
Legal Concern: FAA-restricted Areas
The Federal Aviation Administration’s rules for academic, hobbyist and other forms of non-military drone use are here:
I won't re-hash them, but the FAA does not bar taking pictures—just flying at certain locations and times. However, all operators--whether hobbyists or professionals--have to avoid certain areas at certain times.
The FAA maintains a list of those areas, as well as a list of designated recreational UAS flight zones, available here:
This was so cool, I looked up my part of the state:
And now I know where not to fly the drone I don’t own.
Sample License for Use of Drone Pictures
Once you have confirmed that any drone shots your library would like to use are not: the result of or evidence of a crime, taken in forbidden air space, or otter harassment, here is a sample license for securing permission to include them in an online catalog:
IRREVOCABLE, NON-EXCLUSIVE LICENSE
[NAME] ("Photographer"), an individual residing at [ADDRESS], and at least 18 years of age, hereby gives the [NAME LIBRARY] (the "Library") an irrevocable, non-exclusive, transferable license to use an image entitled [TITLE], a copy of which is attached hereto as "A" (the "Image"). The permission to use the Image includes unlimited use in any format now existing or later developed.
Photographer represents and warrants that the Image is their original work and that to the best of their ability to determine the rights of no individual or entity were violated by the creation of the Image.
In consideration of the rights granted herein, Library shall at all times credit Photographer with authorship and ownership of the photo as follows: This image is © [NAME], [YEAR], and is used by the [NAME LIBRARY] with permission from the photographer, who may be reached at [email address].
Signed by Photographer: _________________________.
Signed on behalf of the Library: ___________________________.
A Final Word on Getting "Permission"
This question was pre-packaged to consider issues of permission/legal concern related to images generated via drone, so I have structured it to give primary consideration of those issues.
However, I would be remiss if I didn't stress that when assembling an archive or image collection, worries about permission shouldn't always be a threshold consideration.
Why is that? If a library or archive crafts the parameters of an image catalog around the purpose of that catalog—around why it is important to gather a certain type of content, within a certain range of criteria—permission might not even be necessary.
Concerns about permission and legality should not prevent the assembly of a resource that has academic, documentary, or investigative value. And the more a collection or archive is shaped as a documentary, academic, or investigatory endeavor, the less the subject matter and content can pose legal concerns...or rather, the more protections the project will be able to avail itself of.
Taking advantage of those exemptions starts with having a very clear scope for your project, a written set of ethics, and a statement of purpose for the endeavor. 
My takeaway in this final part of the answer? If your project is of academic, historical, or social value, don't let lack of permission be a roadblock. Instead, just like the member does in this question, set up a clear scope for your project, and then tackle any reservations head-on. This will lay the groundwork for a strong archive or catalog.
Posterity will thank you.
 Head Photographer at "Drone Shot Weekly?"
 Here is the FAA guidance on media use of drones for newsgathering: https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80%20-%20(2015)%20Legal%20Interpretation.pdf. It’s interesting: even if using a small drone, such use doesn’t qualify for the “hobby” exception, and the drone should be registered.
 Do you need the “right agreement?” See the section of the answer called "Sample Agreement" for an example.
 NY Penal Law 250.45
 JUST TO BE CLEAR: I have 100% confidence that if a library comes across a creeper nude drone shot, they will not include it in an online catalog! I am just being thorough.
 New York Civil Rights Law Section 50.
 Per 50 CFR 18.137: "Unmanned aerial systems or drones must not cause take by harassment of sea otters. Measures for avoidance of take may be required in an LOA, and may include maintaining a minimum altitude and horizontal distance no less than 100 m away from otters, conducting continuous visual monitoring by PSOs, and ceasing activities in response to sea otter behaviors indicating any reaction to drones."
 Thank you, THANK YOU to the member who sent this question. Because of you, I got to read the FAA's guidance to local law enforcement for drone-related incidents, which includes this practical guidance "NOTE: Battery life is typically 20 to 30 minutes."
 By the way, it might not be precisely forbidden for your library to post such images, just as a newspaper or academic publisher might reproduce them for purposes of news or scholarship. But since those categories come with some higher risks (particularly of being told to cease and desist), it is wise to consider consistency with the purpose and ethics of your archive before including them.
 I am not saying to not consider them...just don't let them be project-killers.
 Such as fair use, journalism privileges, and recognition of the non-commercial nature of the use.
Our board meetings are now 100% remote, and one trustee has failed to attend every session since the start of the pandemic. How can our board address that, if we know the move to virtual meetings (unfamiliarity with Zoom, bad internet, etc.) is the reason for the absence? Is removal an option?
Earlier this week I was having a conversation with Brian, one of my paralegals, about the challenges we—our office and our clients—are facing due to the pandemic. The conversation ranged from the personal (Brian is a musician whose band hasn't been able to play; my father-in-law is in the hospital and we can't go see him), to the professional (how to handle a contract breached because people can’t gather to do the work). We concluded, in a very non-scientific way, that everything—whether it used to be easy, or was only a little bit difficult—is now "at least 30% harder" than before.
On the flip side, later that day, I spoke via Zoom with a friend about how the increased reliance on Zoom, FB Live, and other virtual fora has done wonders for democracy. "People are going to meetings they could never get to before," said my friend. "People who would never have had time to get to City Hall, or would have faced actual physical barriers to getting in a building, are now able to attend." And I optimistically thought: Cool...one thing that isn't 30% harder.
But these current times are not kind to optimists, and this question shows that, for some, even the Zoom-ification of democracy might make life at least 30% harder.
And with that harsh reality established, let's take a look at the legal considerations of this question.
I. Meetings during COVID
As "Ask the Lawyer" has addressed a few times since the onset of NY's response to the pandemic, chartered libraries are obligated to conduct their board meetings in compliance with the "Open Meetings Law (the “OML”). When New York went into social-distancing mode, the requirements of that law were modified by Executive Order to allow people to attend remotely, or through a blend of in-person and remote solutions.
The New York Committee on Open Government (the "COOG") addressed some of the practical considerations of these modifications in guidance issued on August 20, 2020. In that opinion, the COOG stated that if a body subject to the OML resumed meeting in person while the executive orders allowing the modifications were effective, a remote attendance alternative must be provided. As of this writing, modification is good through February 26, 2021.
II. Attendance as a Trustee During COVID
The Executive Orders and COOG guidance clearly require enabling attendance through remote measures. What the executive orders and COOG guidance are silent on is the scenario posed by the member: if a library board and community have transitioned to meeting 100% virtually, and one trustee, due to the technology, isn't able to attend, is the board able to address that under the law?
I have found no guidance precisely on point, but below is my legal analysis, and what I hope will be helpful guidance.
Library trustee service is governed by the laws of New York and a library's enabling legislation, charter, bylaws, and policies (in that order). Aside from customized provisions in a charter, bylaws or policy, the law has two means of addressing serial trustee absence:
Means #1: "Unexcused Absence"
Per Section 226(4) of the Education Law, trustees who are absent for three consecutive meetings without a "satisfactory excuse" for missing the meeting are "deemed to have resigned." That is why, when a trustee lets a board know that they are unable to attend a meeting (virtual or otherwise), and they don’t show up, they are noted on the minutes as "excused," since to do otherwise could put the trustee on a path of resignation-by-law.
Many NY library bylaws have this language in them, but it is not required...since it's in the law. But what isn't in the law is what a board can regard as a "satisfactory" excuse. Is the excuse of a trustee who can't attend remotely, due entirely to technology, "acceptable"? Only a board can say. In a very rural community, it might be. In a highly wired urban area with free wi-fi, where a trustee could perhaps even borrow some library technology to attend the meeting, it might not. So long as the reason is not discriminatory, and not contrary to the bylaws or being unfairly applied, a board has some discretion in what type of reason they are "satisfied" by.
But I can say this: if the absences aren't noted as "unexcused" on the board minutes, a board should not contemplate this as a basis for implied resignation, since the law is clear that this must be based on absence that is unexcused.
Means #2: "Neglect of Duty"
The other statutory basis for removal of a trustee is found in Section 226 (8) of the Education Law: "Removals and Suspensions,” which states that a board may:
“Remove or suspend from office by a vote of a majority of the entire board any trustee, officer or employee engaged under special contract, on examination and due proof of the truth of a written complaint by any trustee, of misconduct, incapacity or neglect of duty; provided, that at least one week’s previous notice of the proposed action shall have been given to the accused and to each trustee."
As you can see, this section (a provision often replicated in library bylaws) creates a more intricate process than Section 226(4): it requires a written complaint, advance notice, and a majority vote of trustees to confirm a removal.
To use this provision to address nothing more than repeated absence due to technical issues is probably overkill, unless the board finds that the mounting excuses—while perhaps initially acceptable—are causing real harm to the library or the operations of the board. Before resorting to this step, it is always good for a board president or other leader to have a conversation with a board member and ask if they would like to offer their resignation (for some, this request may come as a relief).
That said, a "neglect of duty" removal doesn't have to be hostile. It can simply state that a trustee has failed to attend X number of meetings, has been unable to fulfill their duty as a trustee, and that to ensure the board has the benefit of a fully participating body, the board must consider removal. Give proper notice of the “complaint,” make sure the trustee has a chance to be heard, and vote.
So: Is removal an option?
Yes, removal is an option, but as can be seen, when considering such removal, a board should pay close attention to the documentation that it is basing its decision upon.
I am very glad the member who submitted this question is being so thoughtful about this. It is clear from the law, the pandemic-related Executive Orders, and the COOG guidance, that it is the public policy of the State of New York to encourage attendance and access to library trustee meetings, even during difficult times.
While trustees have a different set of rights and obligations than the general public, an effort to orchestrate meetings to be free of pandemic-created impediments to trustee participation is clearly within the spirit, if not the letter of the law. To that end, if a library is open and if it has a Safety Plan that could allow a capacity-limited physical component of a virtual board meeting (perhaps set up in the room where the trustees used to meet, if possible under the Safety Plan), it is worth considering allowing trustees to attend in that manner—even if the rest of the trustees appear virtually.
But to be clear: that is not what the law requires. And if everything feels at least 30% harder these days, every library needs every trustee to be giving 100%. So, if steps need to be taken to ensure a board has its full capacity of engaged trustees, just double-check your bylaws and documentation, and do what's best for the library.
Thanks for a difficult but very important question.
 I have heard people used "B.P." as in, "Before Pandemic." "Pre-COVID" and "pre-pandemic" are also used. I have floated "ante-Corona," because it sounds so grandiose, but I can't get it to stick.
 My friend is an architect, so they tend to see the world in design terms.
 What the Executive Director wrote was: "In my opinion, if a public body can possibly anticipate that any persons who may wish to attend a meeting governed by the provisions of the Open Meetings Law cannot be safely physically accommodated in the proposed meeting location ... that public body is required to simulcast to the public, by either video or audio means, the proceedings of the meeting as they are occurring so that all members of the public who wish to “attend” may do so."
 Full disclosure: this acronym is a constant test of my maturity level.
 For purposes of this scenario, I am accepting the premise that not even attendance via LAN line is possible; something that is certainly feasible in our cord-cutting, cell-reliant society. Further, I have never seen bylaws that require a trustee to own a computer, or even a phone (you usually just have to be 18 and live in the area of service!).
 "If any trustee shall fail to attend three consecutive meetings without excuse accepted as satisfactory by the trustees, he shall be deemed to have resigned, and the vacancy shall be filled." Please pardon the implication by pronoun "he" that only a male trustee can be subject to this law; I don't write the law, I just research, construe, and quote it.
 Short note for all you minute-takers out there: this is why noting those “excused” and “unexcused” absences is so important.
 For instance, if board meetings are always held on Friday night, and the board doesn't excuse the absence of someone who keeps the Jewish sabbath.
 I appreciate that if the trustee is truly inaccessible by computer/phone, this might be cumbersome.
In reviewing your response to a question on Nov 17, 2020 from an adjunct library science professor, your advice is to create a "smell free zone" in the library for those patrons bothered by another person's odor. Your reply, however, does not address staff who are complaining as well about a patron's body odor. Often, the staff take the complaining patron's side. Often, the odiferous patron is a regular patron who spends hours at the library often on the Internet where PC workstations are relatively close to each other. Yes, I can tell staff it is part of their job to deal with it but often that results in a demoralized angry staff- not something I want to cultivate.
Thank you in advance! This column is very helpful!
I am glad the column is helpful, but this issue really shows the limits of the law!
Before I say what I mean, I need to emphasize three things:
1. State and federal law often protects employees who complain about "working conditions." Since an odor is a "working condition," no matter what position a library takes on "bad" smell (barring it as a disturbance, allowing it as a matter of mission, or a solution somewhere in between), leadership should carefully listen to employees' concerns.
2. While my November 17th answer mused there are several compelling reasons to opt for a more inclusive solution (like use of a "scent free" zone), I want to re-emphasize: that is not what the law requires. Rather, the law requires that people not be barred from library access on the basis of disability or protected characteristics. Since that is a slippery slope, not barring people on the basis of smell (or using a "scent free zone") is a good way to stay in a legally safe zone.
But barring disturbing odors, if done carefully, is still allowed by law.
3. Although I imagine that the member submitting the question didn't mean "taking sides" literally, because it is so critical, I have to say: library employees should never perceptibly "take sides" with one patron against another patron, even if they privately agree that a patron's odor is off-putting. This is because if access is going to be limited, the library must be able to show fair and equitable treatment. An employee with a concern, of course, can take it directly (and discretely) to their supervisor.
So with all that said...
From the legal perspective, the key on the employee side of the "smell" issue is to listen to employees' bona fide concerns about their working conditions. This is true whether your library decides to bar certain smells as "distractions," or to find creative ways that, ultimately, might expose an employee to an unwelcome smell. Above all, whatever approach is taken, it should be clearly set out in a written policy, and decisions under that policy should be well-documented. And to address concerns like the one raised by the member, to the greatest extent possible, the policy should be written with the input of employees, who should also be trained on how to work with it.
But that said...
Does this mean some employees, believing their library should have a more inclusive policy, might have to enforce a restrictive policy? Yes.
Does this mean some employees, not liking their library's more inclusive policy, may have to work near a person whose smell they do not like? Yes.
This is what I mean by "the limits of the law." The law can help libraries foster positive working conditions and employee morale—to a point. After that, it is down to leadership, well-developed polices, and good employee relations.
This is why people often like their HR director more than their lawyer!
 I don't mean employees are entitled to complain all day every day; an employer can require complaints to be conveyed in a way that does not unduly burden productivity. But if an employee is expressing a bona fide concern (it's too cold/it smells/these computers don't work) the National Labor Relations Board has found such expressions to be protected activity.
 This is a tough one. It is not "taking sides" to contribute to a report or Code of Conduct enforcement; my concern is that at all times library employees have to model fairness, so when they take action under a policy, the process looks as fair as possible.
A municipal public library has accepted a gift of real property and is selling the property.
How much autonomy does the Library have in accepting and selling this property? The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum (as required by law).
Finally, who controls the proceeds from the sale?
In law school, one of the first classes you take is "real property."
I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property? What...is there something called UNreal property?
Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"
Warn your kids: this is what three years of law school will do to you.
I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them. Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts, and poring over inspection reports. And don't get me started about design-build contracts.
In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019. So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.
This background allows me to jump right into the specific concerns of the member's questions:
Question 1: "How much autonomy does the Library have in accepting and selling this property?"
Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.
Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.
Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.
Question 3: Finally, who controls the proceeds from the sale?
Answer: the board of the library, and no one else.
To the member's brief, pithy questions, I will add a question of my own:
Question 4: Why am I so confident about the answers to questions 1 through 3?
Answer: because I have researched the following:
These materials span over sixty years of library law-making, and I am not going to summarize them all here. But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:
Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York, may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."
Here are some examples showing how this legal structure has been applied:
In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners. This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot). If that is the case, the law and regulations applicable to both entities would govern a sale. However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.
Flash forward to 1976, when the Comptroller stated that a school district library could acquire a building on its own. Since that time, there hasn't been a lot of case law over who owns library buildings: like any other stand-alone, not-for-profit education corporation, a library can own its own building.
That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used. This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).
Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings. Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county). But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.
So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability. As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).
Thank you for a great question.
 A "title abstract" is a summary of everyone who has owned a parcel of property since it was first regarded as something to be owned. It can contain all sorts of historically salacious details, like when a house was foreclosed on, or what it sold for in 1935.
 Which all Regents-chartered "municipal" libraries are.
 Opinion of the State Comptroller #142 (1953).
 Opinion of Counsel for the NY Education Department No. 61 (also 1953).
 Another type of "public" library.
 Opinion of the State Comptroller #771 (1976).
 There is a lot of case law involving the planning and construction of library buildings, but no squabbles about who actually owns them. For a good example of a case involving construction of a library, see Matter of Rimler v City of NY, 53 Misc 3d 1212[A], 2016 NY Slip Op 51627[U] [Sup Ct, Kings County 2016].
 Martin v Board of Education, 39 Misc. 2d 519, 241 N.Y.S.2d 396, 1963 N.Y. Misc. LEXIS 1971 (N.Y. Sup. Ct. 1963).
 It is important to know who owns the building! If your library is a tenant rather than an owner, it impacts things like personal injury cases (an example of this is found in Deinzer v Middle Country Public Library, 2013 NY Slip Op 33823[U] [Sup Ct, Suffolk County 2013].
The awful CASE ACT is now a law. While I think the language is problematic, I fear trolls will try to collect money ($30,000) from libraries unaware of this change in copyright. Here is a blog post that I thought was helpful https://www.recreatecoalition.org/the-case-act-now-what/
What should we be doing? Thanks.
For those readers who haven't been following it, the "CASE Act" authorizes the federal Copyright office to create a "small claims" division for the adjudication of "small" (under $30k, and no award of attorney's fees) copyright infringement cases. ,
Like the member, I know many attorneys who think this legislation is "awful." I also suspect that if I took an insurance carrier and a publisher out to a bar, they would think it is "pretty cool," and would toast the efforts of the well-paid lobbyists who worked so hard to ensure it got passed this December along with the federal budget.
There is a LOT of writing out there on the CASE Act, so I am going to focus on the practical aspect of the member's question: when it comes to the inevitable trolls who will use genuine claims and fraudulent allusions to this new method of bringing copyright claims, what should libraries and other information professionals be aware of?
The good news is: even with new legislation, your response remains the same: keep calm, and deal with a copyright infringement allegation step-by-step.
What are those steps? Updated for a CASE Act-containing world, here is the "Ask the Lawyer" "Copyright Troll Begone!" Emergency Response Procedure.
"Copyright Troll Begone!" Emergency Response Procedure
Step 1: Receiving the complaint
If your institution receives ANY assertion of copyright violation (by email, mail, phone, in person, or fax), do not immediately reply to the allegations. Never!
If the accusation is in writing, simply move on to step "2."
For interpersonal outreach (on the phone, in person, in yet another Zoom meeting), state, "I am making a note of your concerns. What is a good number/email to reach you at [at least one day later]?" NOTE: Even if they keep trying to get you to argue/response/engage, don't take the bait, just set up a time to reply.
Step 2: Dealing with the complaint
Okay, you have in writing before you (either as submitted, or in your notes) an allegation of infringement. It is either: i) a scam; ii) an honest but empty threat; or iii) a problem. To determine which of these options it is, you need to either consult your lawyer, or do some research.
Step 3: If you conclude it is a scam
There are copyright-based scams all over the place, and with the CASE Act, the scammers will have yet another point of entry for their menacing but baseless threats. "You owe us $150,000!!!" "To avoid prosecution, contact us NOW." "The CASE Act means we can sue you without registration, so we're attaching your bank account for $30k." Scare tactics. Bogus claims.
If your attorney or your research shows that the complaint you received is illegitimate, I encourage you to send a copy of it to the New York Attorney General, and to the Copyright Office. Then you can stop thinking about the claim, and move on with your day.
Step 3: If you conclude it is not a scam, or can't tell
If you examine the complaint and it seems legitimate, the only thing I can say is: consult your institution's insurance carrier and/or your attorney as soon as possible.
Even if you think your use was "fair" (as in, not an infringement), or you can show you had permission, there is too much risk in saying something that could be problematic later, if you respond to the allegation without a pro.
Step 4: Ensure the Hand-off
Make sure that whoever is handling the matter for you (attorney, insurance carrier) takes responsibility for the next steps, in writing. If an attorney is handling it, a letter or e-mail confirming they are representing your institution in the matter is essential. If your institution's insurance carrier is handling it (many general liability policies cover this...do not forget to check!), you will get a notice of "tender," telling your library that there is coverage, and if/how they will handle it (including if legal counsel will be assigned). With that assurance in writing, you are ready to get back to the business of information management.
Step 5: Check in this time next year on the CASE Act
As the blogger cited by the member writes, the CASE Act was only passed this December. Implementing it will take the federal Copyright Office some time. Or as they put it:
The Office must establish the CCB by within one year of enactment, unless the Register of Copyrights, for good cause, extends the time period for no more than 180 additional days. The Office will soon begin implementation activities. Proposed regulations will be published in the Federal Register and the Office will provide updates through its NewsNet service.
We'll keep an eye on the developing regulations here, and send a "CASE Act" update this summer or early spring.
 If you want a more official-sounding description, here is the description from the Copyright Office: "On December 27, 2020, the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act) was enacted as part of the Consolidated Appropriations Act, 2021. The CASE Act includes a number of the Office’s earlier recommendations. It establishes a Copyright Claims Board (CCB) in the Copyright Office to hear copyright infringement matters and (1) caps damages at $30,000 total (including statutory damages of $15,000 per work, and $7,500 per work for which an application was not filed in accordance with section 412 timelines); (2) provides an opt-out option for the respondent; (3) includes streamlined procedures that limit discovery and rely mostly on written materials; (4) allows claims by both copyright owners and users for infringement and exceptions and limitations, respectively; and (5) includes additional fees for bad faith claimants and bars those who repeatedly abuse the system."
 Here is a link to the legislation: https://www.congress.gov/bill/116th-congress/senate-bill/1273/text
 "Troll" has a primary connotation of being an online provocateur, these days. But in the intellectual property world (patent, trademark, copyright), "Troll" means a person/entity who trades in IP with a goal of suing for infringement. Either meaning, of course, is nowhere near as cute as the fluorescent heroes of the "Trolls" franchise, who are just darling.
 Feel free to print it and put it on the wall near the "handling angry phone calls," and "don't fall for this phishing scam" lists.
 If they put the threat in the chat box, just grab a screenshot and continue with the meeting.
 You can send a consumer complaint to the NY Attorney General at https://ag.ny.gov/consumer-frauds/Filing-a-Consumer-Complaint.
 The Copyright Office doesn't have a fraud report utility, but you can reach them at https://www.copyright.gov/help/. You can forward a pdf of it to me, too. I collect these things the way other people collect menus or bottle caps.
 If you are feeling whimsical, you can say "Copyright Troll, begone!" as you put the notice in the shredder.
Can an employer require a negative COVID test before an employee comes to work? We have discussed it on our [public library system] member directors list but have not come up with a clear yes or no answer.
Here's something positive and affirming I can say: it's possible that the members expressing different opinions on the member directors' list are actually all correct.
That’s because, while I can't give one "clear yes or no answer" to this question, I can give five...five answers based on different scenarios about the facts "before an employee comes to work," including their symptoms, COVID exposure, and the safety measures needed to reduce the risk of COVID transmission in their workplace.
Here the five scenarios are:
Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work, if an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19.
No, an employer does not have to, and has no basis to, require a negative COVID test before an employee comes to work, if the employee is working 100% remotely at home or in a location not at all controlled or at the direction of the employer.
No, an employer may not require a negative COVID test before an employee comes to work, IF the employee has a medical basis to not be tested; without a negative test, however, if certain screening factors were tripped (such as those in item 2, above) the employer will have to enforce other prescribed measures to comply with state requirements and reduce the risk of transmission within the workplace, such as a mandatory quarantine.
Yes, an employer can require a negative COVID test before an employee comes to work, if an established safety plan based on applicable OHSA guidance and the employee's job duties warrant that level of caution.
I am not surprised you were unable to find a clear answer from a single reliable source, as these five scenario-based answers had to be cobbled together from two separate documents from the New York State Department of Health, which when combined, require employers to:
"Implement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days. Assessment responses must be reviewed every day and such review must be documented."
"An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing." [emphasis added]
"If an employee tests positive for COVID-19, regardless of whether the employee is symptomatic or asymptomatic, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic."
"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is experiencing COVID-19 related symptoms, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms."
"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."
"If an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19, the employee must be separated and sent home immediately and may return to work upon completing at least 10 days of isolation from the onset of symptoms OR upon receipt of a negative COVID-19 test result." [emphasis added]."
And there you have it. I am not sure if this will make things clearer, but hopefully I have added some clarity to the uncertainty.
 In this case "work" means the "work site," as in an established office or location controlled by the employer where an employee will report to work, or a site they are directed to appear at. For this question, "work site" does not mean a home office or other space the employer does not control/send the employee to.
 I know I covered this in footnote #1, but it bears repeating: based on the published guidance, NY employers are required to conduct mandatory screenings to reduce the transmission of COVID in areas they are responsible for, and areas they serve as part of their work, but not an employee's home office. Requiring a test when there is no logical nexus between the employer's obligations and the request for medical information runs the risk of an ADA violation (not a slam-dunk risk, but enough of a risk to make it a bad idea).
 This answer is based on the Americans with Disabilities Act; if an employee has a disability that means they cannot medically tolerate a test (I have not heard of this, but I imagine it is possible), they will have to provide an alternate means of ensuring safety if such an accommodation is reasonable.
 This answer is based on the needs of work places with the highest levels of risk and risk management.
 "The New York State Department of Health considers a "close contact" 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. The local health department should be contacted if the extent of contact between an individual and a person suspected or confirmed to have COVID-19 is unclear. "
We received some questions from a chartered museum about weeding from the museum's internal research library:
Put your sneakers on. These questions require us to jump through several analytical hoops.
First, a library that is part of a chartered museum or historical society in the state of New York, when weeding materials, must figure out which, if any, of the materials within the library are part of the museum's official collection, and thus controlled by the museum's "collection management policy."
Most museums and historical societies maintain good records of this, and it's a yes-or-no question, so this first hoop is fairly simple.
With collection status determined, any materials within the library that were "accessioned" (brought into the museum's official collection) under the collection management policy must also be "de-accessioned" per that policy, before they can be weeded from the library's collection and thrown out, donated or sold.
Any materials that were not accessioned into the museum's official collection are still assets of the chartered entity, but do not have to go through the de-accession ritual prior to what comes next.
Next, the museum or historical society must determine if there are any conditions or restrictions on the materials, such as a donor agreement, a grant, or other contractual terms. If there are any restrictions, those must be addressed.
Next is to confirm ownership. If the museum doesn't have a clear record of how the materials were acquired (either by purchase or donation), or if they were loaned to the museum and never picked up, the museum must follow the procedure in Education Law 233-aa to assert its ownership before it can consider any removal.
After doing what's needed to establish the materials' status, the museum can then--as governed by its own charter, bylaws, and policies--either 1) donate the materials to another charitable organization (transfer for free to an individual or for-profit organization could cause problems), or 2) sell them for fair market value to any organization it wishes (profit, non-profit, or individual).
Contingent Hoop 6 (the "de-accession hoop")
Of course, sale or donation of any items that started out in the collection will be governed by the factors in the regulations governing de-accession (8 NYCRR 3.27). This consideration was already raised in Hoops 1 and 2, but is so critical, it is worth mentioning again.
Contingent Hoop 7 (the "233-aa contingency hoop")
If the materials were "undocumented property" or "unclaimed property" under 233-aa, and the materials are to be sold, there is an extra consideration: any proceeds derived from the sale of the materials can only be use for "the acquisition of property for the museum’s collection or for the preservation, protection, and care of the collection and shall not be used to defray ongoing operating expenses of the museum."
And with all those hoops complete, there you have it: a full cardio workout, based on assessing a museum's library's property's status under the law.
I hope this analysis and advice are helpful (and good exercise).
 A museum or historical society cannot operate a library with circulation to the public without provisions in its charter. However, a museum or historical society can operate an internal library for purposes of supporting the collection, and that's what we're talking about here. 8 NYCRR 3.27(f)(3).
 Which should follow the regulations set out in 8 NYCRR 3.27
 I have been told that most librarians do not have the same gut-wrenching aversion to the idea of throwing out books that I do. Typing "thrown out" actually made me wince.
 This is one of my favorite laws on the books, because it contains the magic formula for transforming an object of unknown origin, or an abandoned object, into the property of the museum. That said, in practice, it can be a bit of a pain, because the formula contains multiple steps and a publications requirement.
 The last question, thankfully, requires no hoops: "sale" could certainly include an auction, or any other legitimate method of transferring title for consideration (money, or assets in-kind).
 A sale for a nominal amount, or for less than fair market value, to a for-profit or individual can impact charitable and 501(c)(3) status.
 Since the library within the museum is not a chartered library, it does not have to follow the requirements of Education Law 226.6(b), requiring that materials be offered to a local charity or political subdivision.
 Could I sneak another apostrophe in there? How about: "museum's library's property's boxes' cardboard's strength?" Oh, yeah.
I've seen libraries take pictures of book covers and promote them on their library social media page, and was wondering if the same policy holds for movies. Can we take a picture of the front covers our new DVDs and promote them on Facebook? Or is it preferred that patrons browse our new DVDs in the library and/or on our library catalog?
Even though we purchased a movie license, I do know that due to copyright laws, we are not allowed to promote on social media any movies that we are showing at the library. Patrons are asked to call us and inquire what movie we are showing. Thanks for the help!
There are a lot of legal technicalities hidden in this question, but before we get to them, here is my overall advice: The more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media, the more you can include copyright and trademark-restricted content in social media promotions.
For example: If a library takes a picture of a new DVD, with only the cover content in the photo, and posts it to social media, that could potentially trigger some type of copyright/trademark concern. But if that same library takes a picture of their librarian holding that same DVD while giving a thumbs-up ("This new movie is librarian-approved!") that concern is greatly reduced, since the proprietary work is only part of the message.
This same guidance applies for book covers, new games, and other media packaging. Since copyright and/or trademark can both be invoked to protect any of that content (although just how protected the content is will vary from item to item), displaying it on social media as part of your library's overall personality and outreach is much better than using a photo or scan of the book/cover on its own. When you don't have permission, use of a proprietary image as part of a related but larger social media message ("We have this great book!") is generally a safer approach to image use.
Now, at this point I must note: the "image use" in this question is different from using cover content (let's call them "thumbnails," for nostalgia's sake) supplied by providers like Overdrive for your library's online catalog. Use of thumbnail content in your catalog (and thus, generally, on your library's website) is likely restricted in the license from the provider, but supplied with the understanding that the thumbnails will be viewed via your library's website as part of the service.
Now, as to announcing movie nights...this question gave me a double-take, because neither copyright nor trademark, in and of themselves, bar listing the bald fact that your library is hosting a (licensed) movie night, and the title of the movie—whether via a poster, or via social media.
But since I have never known a librarian to submit a baseless question to this service, I dug a bit more, and found this statement in the Swank guidance for libraries using their "single event' license:
"If the public library’s social media accounts are set to private, the title may be used. If the library’s social media accounts are not set to private, it is recommended the title not be included. The movie event may be promoted on the social media pages with a link to the title on the library’s website."
So to be clear: copyright doesn't forbid promoting the movie, but restrictions on promotion could be a requirement of the license (the contract allowing your library to show the movie), or (as the case here) a "recommendation" of the licensor, likely at the request of the trademark holder. This is one of the more bizarre "recommendations" I have run into in the contract-analysis business, and I thank the member for sending it along!
And that's it. Again, the take-away from this answer is: the more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media, the more you can include copyright and trademark-restricted content in social media promotions as a component of that larger messaging. Along with being a type of risk management, this will also lend itself to your library having better, richer, and more interesting social media, so it's a win-win; sometimes the law and quality control go hand-in-hand.
And now, to go watch the new [TITLE OF MOVIE REDACTED] with my family.
 For purposes of this question, I do not consider your library's website "social media," since in many ways these days the website is simply the virtual part of the library. "Social media," to me, are third-party contractors: the usual and growing array, like FB, IG, TT, Twitter, etc.
 Using movies stills and original posters can pose a concern, but here, we're just talking about announcing the title.
 You can find it, too: https://www.swank.com/public-libraries/faq/#afterpurchase6
 That said: "it is recommended" is not the hallmark of contractually enforceable language. My guess is that this is something Swank told its content providers it would do, but everyone realized that as a hard requirement, it is pretty ridiculous ("We're showing a movie! Can't say the title!") and could cost them business. I can see why content providers would ask for it, though, and I bet it shows up in other licenses. If you have a license with a requirement like this, please send us a copy; I collect contract artifacts like this.
 Because it will make it much easier to claim fair use, and also make it much less likely that your library will be accused of infringement in the first place.
We got a question regarding how the new rules for records retention (the "LGS-1") impacts the retention of school library borrowing records.
Under the new LGS-1, how long must school library borrowing records be retained? How does that impact BOCES, district, and school library records purging?
Thank you for this question. The LGS-1 is one of my favorite rabbit holes to explore.
I took a look at Schedule Item 596, which applies to "Borrowing or loaning records." I have put a screenshot of the section, as it appears in the schedule as displayed on the NY State Archives web site: http://www.archives.nysed.gov/common/archives/files/lgs1.pdf
As you can see in the screenshot, 596 fixes the retention period for borrowing or loaning records for school libraries as "0 years after no longer needed."
"No longer needed" is one of those phrases in the LGS-1 that renders the retention period variable. This flexibility can be both helpful and frustrating, since a district, BOCES, or school library must determine, via policy, what "needed" means.
This can vary from place to place, but in all instances should be based on a determination of what is meant (for the district/BOCES/or school library) by "need," and then confirmed in a policy.
After that, best practice is always to purge records once their retention period is over, and for something as deeply connected to ethics, compliance and privacy as library records, that is doubly true. For school libraries, that retention period is zero, once the records are no longer needed.
Therefore: determining how long student library borrowing records are "needed" (something that may vary from library to library, district to district, BOCES to BOCES), and then purging the record as soon as possible, is a good way to use the LGS-1 to enhance an institution's commitment to privacy.
Thanks to the member for bringing up this nuance. These issues are at the crossroads of ethics, compliance and automation, and require continuous and careful attention to detail and resulting policy.
Are public or private libraries obligated to give paid time off for eligible employees to get the vaccine during work time? A staffer is planning to go upstate for it on a work day and the question came up if they have to use sick time or just "get the day" to take care of this. Thank you!
Recent changes to the Labor Law make the "private" part of this question easy to answer: since all employers must now offer all employees sick leave (unpaid if the employer has under four employees, paid if five or more), an employee may use that sick leave for the purpose of obtaining medical care, including to get vaccinated.
If a non-government-agency employer would like to go one step further and not require an employee to use accrued sick leave, but instead, give them a day (or two half-days, for the vaccine that requires two shots) for the specific purpose of being vaccinated, that's fine, too, so long as the library considers vaccination of employees to be part of its Safety Plan (making the vaccination a work activity, and not a prohibited gratuity from a charitable entity to a private person). But there is no obligation to do so.
Small but critically important exception to this rule: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.
Okay, this is where it gets tricky. For public libraries that consider their employees to be employees of a "government agency," hang on one second, we'll address what you can do in the paragraph below. For all other public libraries, who must follow the new sick leave law, the section above applies.
Public Libraries Who are "Government Agencies"
For public libraries whose employees are considered employees of their sponsoring municipalities, there is no obligation to "give" paid time out of the library to get vaccinated unless it is in a collective bargaining agreement or your government subdivision's response plan. However, if your library is allotted vaccine as part of a rollout to public employers, and the entity you are getting it through (sponsoring municipality or school district) is encouraging vaccination by allowing it to be done on work time, that is an option to consider. Further, if your library develops an employee vaccination rollout plan as an addendum to its Safety Plan and would like to offer up to a certain number of hours of paid time out of the office to encourage vaccination, if part of a plan, that can be allowed (but is not required).
Small but very important exception to this rule, just like with "private" libraries: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.
Issues like this a) affect mission and morale, b) relate deeply to employee and public safety, c) can impact a library's budget, and d) are fraught with compliance concerns, so any decision is best to tie to your library's Safety Plan, and to have trustee approval (confirmed by a vote).
I continue to admire the care for others, tenacity, and attention to detail members of the library community bring to their questions as we get through this pandemic together.
 Just to be clear: to avoid a forbidden benefit to an individual, NO charitable entity should "give" a paid day off for vaccination without linking the enhanced safety of workers to its charitable operations (i.e., making it a part of their Safety Plan).
 Note: even when this is the case, the library's board of trustees, and only the board of trustees, determines who is hired, how they are compensated, and any matters related to development, discipline, and termination.
 At least, it is not required as of 1/21/21. As with all things COVID, check for updates on this.
 And be reviewed by a lawyer, whenever possible.
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 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]
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.
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 (any type) and with a member of their immediate household with higher risk of illness and/or poor outcome
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.
The Director, or their designee, shall be responsible for compliance with this policy.
[**END EXAMPLE POLICY**]
[**START EXAMPLE NOTICE**]
[NAME] Library Vaccine Opportunity Notice
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. 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. 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.
 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.
 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.
 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.
 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.
I know we can't use Netflix, Hulu, or Amazon Prime on a normal basis to show movies in our classrooms because when we sign up for their service, we sign a contract stating that our accounts won't be used for public performances (personal use only). I am understanding that it is because Netflix, Hulu, and Amazon Prime do not outright own the content on their platforms and enter into agreements with the owners of the content for personal use only. However, I wanted to find out if a student can use Netflix, Hulu, or Amazon Prime to stream a portion (5 Minutes) of a movie where the student has received written permission from the Producer of a movie to show it as a public performance... I wasn't sure if the Producer permission supersedes the personal account contract of the Streaming Service?
This question is a good question for the bar exam! It is a great blend of contract law and copyright.
Well, that's enough positivity for today; time for the answer, which is...
Here’s the simply reason why I say “no”: as the member states, Netflix, Hulu, etc. tend to restrict their content for personal use, meaning: no classroom/board room viewings. This means that even if the use is "fair" or otherwise non-infringing, non-personal-use viewing is barred by the agreement the account holder has with the service.
The more sophisticated basis for me saying "no," is this: Netflix, Hulu, and their ilk bar group viewing not only because of the contractual obligations they have to their content owners, but also because to do otherwise would mess with their economic model. In short: it will cost them money. So even if a copyright owner says it's okay, they might not be inclined to consent to a use contrary to their contract.
That said, to add to the law-school-ness of your question, I'll add to your scenario:
If the student obtains a DVD or finds an online copy of the 5 minutes they need, and plays that copy (not the one from a commercial content service) to the class, if the student truly has proper permission of the copyright owner, then what would otherwise be an infringement is not.
Of course, this requires a DVD, or an online copy from a source that doesn't bar the use via contract. And of course, my scenario defeats the purpose of your question, which is to view the 5 minutes of the film in the format that is (likely) the most convenient: streaming.
I am sorry to be a bummer.
 There are of course exceptions, as these services can feature education-specific content intended for educational use. But those are the exceptions, not the general rules (at least right now).
 Which are quickly on their way to becoming as obsolete as—but not as cool as--vinyl, or cassette tapes.
 Which makes it painfully likely the copy is not 100% legit.
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***
Here is what else you can do:
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.
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:
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 if this approach proves effective.
 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.
 This answer is being composed on January 11, 2021.
 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).
 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.
 firstname.lastname@example.org (Stephanie "Cole" Adams) and email@example.com (paralegal Jill Aures), thanks.
The library is seeking information about a law stating that the library board has sole authority over public library staff benefits. The issue that needs to be addressed is a town board's attempt to eliminate a part-time employee's one week of paid leave per year that the library board granted [several years ago]. The town board's position is that since the other part-time town employees do not receive this paid leave, the library staff should not either. Research into the issue included a review of Education Law 226, but that only addresses hiring, firing, and salaries. Benefits such as paid time off, holiday pay, sick leave are not covered.
I recently had a chance to check in with the New York State Comptroller's legal department on this very topic.
The reason I had to check in is because the most recent on-point authority I could find on this subject was from 1981.
The input I got from the legal department was re-assuring: no change in guidance in the almost four decades that followed.
Now, that said, the attorney at the Comptroller's gave me the usual disclaimer that I often give in "Ask the Lawyer": It's just an opinion. The law can change. Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you."
But that said, below are the reassuring words of Comptroller Opinion #445, circa 1981. Since they are a little heavy on the legalese and citation, I've put the important part in bold:
"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees." [emphasis added].
So, with regard to the member's specific situation, I of course have to say: " It's just an opinion. The law can change. Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you." But if all of those things have been checked, and there is no provision changing the default, the Comptroller's words from 1981 still apply.
I hope this will help as your library works to retain that one week of paid leave!
Thanks for a great question.
NOTE: For libraries that are running into this type of issue with their sponsoring municipalities, below, please find "some additional input" that I hope can be of help:
As many of you know, my law office has the privilege of working with libraries across New York. It is work my team and I value highly, because it connects us with a vast "information army" of committed, creative librarians who are dedicated to public service.
This work also gives us an array of windows into what is happening "out there," especially when it comes to public libraries working with their districts and municipalities on issues like the one shown in this question. And while each specific view from any particular window is confidential, it positions my team to distill a lot of anecdotal information, and to share what we see in the aggregate.
Based on what we are seeing "in the aggregate" the type of issue brought forward by the member has always been an "issue," but with the budget pressures and political theater ushered in by the events of 2020, it appears positioned to become an "Issue" into 2021 and beyond.
The emergence of this Issue isn't just a by-product of budget woes heightened by pandemic. It is also the result of a rapidly evolving regime of employment law in New York, making the distinction between government and "private" employers more critical, with every passing day. This distinction impacts things such as: comp time, overtime, minimum wage, insurance, liability, civil rights claims, labor law claims, and things that may seem mundane, but are actually quite important (such as: "Whose HR manual do we follow?").
If you take a quick scan of the "Ask the Lawyer" searchable index, you'll see that numerous member questions arise from this "Public Library as Employer" divide. And while they relate to different aspects of the library-as-employer, they all touch on one very specific priority: public library board authority. And it's apparent that this is something some sponsoring municipalities and districts have a challenge grasping.
So, in an effort to provide a short, succinct resource for libraries to direct their government entities to when they try to interfere with hiring, try to control employee benefits, or otherwise try to interrupt the autonomy of duly elected/appointed trustees in the governance of a chartered public library, I am posting this memo on my firm's website at https://www.stephaniecoleadams.com/adamsblog/2021/1/7/comments-on-public-library-board-autonomy, without the usual snarky asides and footnote commentary.
Hopefully it can help avoid some of the needless argument and hostility that these misunderstandings can create. If you find it helpful, please let us know.
Comments on Library Board Autonomy
Law and current legal authority firmly establish that public library boards are the sole authority regarding employee terms of employment, including hiring, compensation, benefits, evaluation, promotion, discipline, and termination.
This autonomy is constrained only by a public library board's need to observe the New York Civil Service Law, the New York Education Law, numerous state and federal labor laws, various applicable regulations, and a library's own charter and bylaws.
The law does allow a public library to use, in whole or in part, the payroll system, policies, and benefits systems of their sponsoring government entity, if such resources are offered to the library by that entity. Further, the government entity, in making such an offer, may condition such use on the library's cooperation with certain reporting procedures or methods of documentation. The choice to use such offered resources, however, is ultimately at the discretion of the library's board, who may instead decide to have the library implement its own system.
And finally, the choice as to how to expend library funds with respect to employees (salary, benefits, paid time off) always rests solely with a public library's board.
The legal authority establishing these considerations is extensive, but a thorough summary is set forth in the links and content below.
https://www.osc.state.ny.us/legal-opinions/opinion-93-15, which states:
"The ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board even when the municipal treasurer has custody (1991 Opns St Comp No. 91-57, p 158). Further, even if the treasurer of the sponsoring municipality is custodian of the library fund, the library board would have custody of private source moneys of the library (1988 Opns St Comp No. 88-76, p 145; 1980 Opns St Comp No. 80-340, p 101).
Public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131). In addition, public library officers and employees are often not considered to be officers and employees of the sponsoring municipality or school district (see, e.g., General Municipal Law, §800, conflicts of interest; Public Officers Law, §10, official oaths; Binghamton Public Library v City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515 and County of Erie v Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515, collective bargaining negotiations). In view of the library's fiscal autonomy, it is our opinion that library trustees and the separate library treasurer are not town officers or employees for purposes of Town Law, §123 and, therefore, are not subject to the accounting and auditing provisions of that section.
We note, however, that General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds."
https://www.osc.state.ny.us/legal-opinions/opinion-91-57, which states:
"With respect to library moneys, however, we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226, 259; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). In addition, it is the library board of trustees which may authorize the investment of library moneys even when the moneys are held in the custody of the municipal treasurer (Opn No. 86-54, supra). Therefore, since the library board controls the use and disposition of library fund moneys, it is our opinion that the library board must consent to any arrangement under which library fund moneys are to be comingled with moneys of the municipality."
https://www.osc.state.ny.us/legal-opinions/opinion-2001-12, regarding indemnification of library trustees, which states:
"PUBLIC OFFICERS LAW §18: There are two alternatives for conferring the benefits of section 18 of the Public Officers Law on employees of a public library: either (1) the board of trustees of the library may elect to confer the benefits of section 18 on library employees as a public library expense; or (2) the governing board of the sponsoring municipality or school district may confer section 18 benefits on library employees as a direct expense of the sponsor."
Comptroller Opinion #445, which states:
"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees."
I hope this information is of assistance.
 This is like a guitar player saying they recently got to jam with John Mayer.
 In fact, to bolster the 1981 opinion I found, they sent me an even older opinion.
 I appreciate that anecdotal information is not precise data analysis. For that, I rely on the system, councils, LibDev, and NYLA. I fall into those data rabbit holes regularly.
 I am very gratified to have been doing this long enough to warrant a searchable index.
 Write to firstname.lastname@example.org and email@example.com.
As we transformed to fully/largely remote learning and pulled all student work and interactions onto Google platforms, a question has arisen about the intersection between student privacy and parent access to student accounts. Currently, if a parent is given their child's google log in information, they will have access to far more than ever in the past. Because of authentication agreements, library records, database access, all stored documents, any Google classroom the student is enrolled in, classlists for those classrooms, comments from teachers, peer work on group projects...this is likely not an exhaustive list!
My 2 biggest areas of concern are 1) access to library check outs and 2) ability to see that a student is enrolled in a classroom for the Gay Straight Alliance (GSA) at the school and the entire class list of other members.
I am told by my administrators that FERPA allows for parents to be given student log in information. The RAQ, post "Topic: Patron Confidentiality in School Libraries - 5/6/2019" gave very good information but both the online aspect and the myriad of elements that are exposed with that single password compel me to seek more details. Thank you!
Thank you for this careful and thoughtful question. As we rush to migrate education to online, the small details can get overlooked. As the member writes, information that used to be safeguarded in physical files or with separate passwords is increasingly accessible via a "one-stop shop."
Depending on the type of information involved, any number of ethical, privacy, and legal concerns can be impacted.
In this question, the member focuses on two types of information: library records, and FERPA-protected "education records."
For library records, there is an overlap of legal concerns—an overlap that was thoroughly discussed in the 5/6/19 answer the member cites. In that reply, we established that depending on how a school/school library is set up, parent/guardian access to this information might be allowed--but it’s a question that should never be left to chance (it should always be answered by a school’s FERPA and library privileges policies).
To that answer, and considering the spirit of the times, I'd simply add: any librarian out there, operating in elementary and secondary education, should be lauded when they raise privacy concerns. Librarians should work with IT departments and procurement professionals to ensure data management and automation enable the separately governed access to a student's library records. Even when access is legally allowed by a system, it is still good to emphasize the privacy of library records.
Here are several examples of how this can be done:
For any educator reading this and thinking “Uh-oh,” if the horse is out of the barn, it is never too late to adopt some retroactive corrections. When parental access is as plenary as the member describes, if there is a confirmed issue (such as access to one student’s enrollment records leading to access to all students’ enrollment records) working with IT to address the specific utility hosting that information, and how it can be further locked down, is the only solution.
There will be times when addressing an issue like the ones raised by the member is simply not within the authority of the person concerned. A concerned librarian or educator might even find themselves rebuffed when they try to ring the alarm! When that happens, it is time to kick it upstairs. Each school should have a FERPA officer, and at least one senior administrator whose role is associated with enforcing a code of ethics or policies on privacy. Concerns of this type are all appropriate to direct to such an administrator.
No one engineers a FERPA or privacy violation on purpose, but unwitting violations can happen when the learning environment has to change fast. Being alert and ready to identify and correct concerns as soon as they emerge is critical. Thanks for a solid question that shows how it's done.
 “Pandemic Exigencies” would be a good name for a heavy metal band.
 As discussed in that 5/6/19 answer, who "properly authorized parties" are can vary from school to school.
 This is indeed a possible violation. FERPA §99.12 states "(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student."