RAQs: Recently Asked Questions

Topic: Open Meetings Law and Social Distancing Requirements - 07/06/2021
Now that Open Meetings Law modifications have been lifted, are we still required to maintain physi...
Posted: Tuesday, July 6, 2021 Permalink

MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

This question comes at a very challenging time.[1]

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.[2]

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.[3]  And as of July 1, 2021, the state announced that almost all COVID-related restrictions were lifted.[4]

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a Safety Plan[5] crafted to suit their unique identity (by "unique identity" I mean things like a large library with outdated HVAC and windows that don't open, has different considerations than a small library with assurance of constant fresh air).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.[6]

If some of them are not vaccinated, do we required all the trustees to wear masks?

The WHO would (currently[7]) say: yes.

The CDC and the State of NY would (currently[8]) 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[9]) 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.[10]

Conclusion

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.

Coda

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:

Screenshot of current WHO Guidance as of July 6 2021.

Snapshot of NY's July 1 announcement:

Screenshot of NY.gov announcement from July 1, 2021.

 

Snapshot of New York's May 19th Guidance (now largely optional):

Screenshot of NY's guidance from May 19, 2021, which is now optional

 

Snapshot of current (June 10) OSHA guidance:

Screenshot of OSHA guidance from June 10, 2021.

 



[1] 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.

[5] Whether they were required to have one, or opted to have one.

[7] As of July 2, 2021, at 11:30 AM.  Go ahead, WHO, hit me with a change-up, I can take it.

[8] 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!

[9] 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)

[10] 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).

Tags: Board of Trustees, COVID-19, COVID-19 Vaccine, Emergency Response, Open Meetings Law, Safety Plan

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