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a Safety Plan crafted to suit their unique identity (by "unique identity" I mean things like a large library with outdated HVAC and windows that don't open, has different considerations than a small library with assurance of constant fresh air).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).
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.
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.
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.
Can a public library compel staff members to get vaccinations for COVID-19, when they are available? If so, can an employee request an exemption? Do we need waivers of library liability if a staff member chooses not to get vaccinated?
This is an incredibly sensitive, important, and complex set of questions. I know a lot of people out there in "library land" are waiting on the answer—from many different perspectives.
So we're going to take it slow, break it down, and unpack the components of the answers one step at a time.
Step 1: Considering requiring immunization to COVID-19 as part of a library's evolving Safety Plan
As I have emphasized in numerous pandemic-related answers, any library operating in any capacity right now should have a trustee-approved Safety Plan tailored to its unique operations. The plan should evolve as new safety-related information emerges, and as library operations change.
As of this writing, some libraries are open to visit. Some are doing only curbside. Some are offering more remote programming. Some have used their information management and lending capacity to distribute PPE, food, and living supplies. Because of this diversity of service, they all should have different Safety Plans.
The Safety Plan of a library closed to the public for everything but curbside will be different from the Safety Plan of a library open for socially distant use of computers and lending. The Safety Plan of a library distributing fresh produce will be different from a library streaming programming from its community room to an audience within its area of service (and beyond). The Safety Plan of a library operating with ten on-site staff in December should be different from the one they used when there was only one employee on-site in June.
Just like the decision to use a particular mode of sanitization, as a library undertakes and changes its unique services, the decision to require immunization of employees should start with vaccination's role not as a stand-alone solution, but as part of an overall approach to limiting the impact of the pandemic on your library, its employees, and your community. Do the services your library needs to provide the community warrant immunization of employees? If so, keep reading.
Step 2: Wait, so does what you said in "Step 1" mean a public library can go ahead and require employees to be vaccinated?
I say "yes," because under the right conditions, the law does allow employers to impose conditions for safety, and that can include mandatory vaccination. However, I also say "NO," because the phrase "the right conditions" carries a lot of complexity for three little words. To be safe, the default assumption of a library should always be that it can't require immunization of its employees...and then work to find the way, if well-informed risk management and an updated Safety Plan warrants it, it can require immunizations (and just as critically, if it should).
Step 3: Assessing if a library can require vaccination of employees
Before a library gets too far into an internal debate about if it should amend its Safety Plan to require vaccination of employees, it should assess if it is in a position to do so. This means having an experienced HR administrator or attorney look at the organization's bylaws, policies, and employment relationships to see if there are any steps or bars to the requirement.
What could such a bar look like? The most common impediment a library will run into on this is an employment contract—either for individual employees, or with an entire employee union (a "collective bargaining agreement"). The bottom line on this type of impediment: if there is a contract in play, a library must be very tactical, collaborative, and strategic prior to creating—or even considering—immunization as an employment condition.
Another bar might be language in an employee handbook or a pre-pandemic policy. Still another might be that "gray area" when library employees are considered employees of a school district, village, or town.
The best overall guidance I can offer on this Step is: assessing if your library is positioned to require immunization is a critical step to using vaccination as a tool in your Safety Plan. Bring in a ringer to help your library assess the extent of what it can do.
Step 4: Assessing if a library should require vaccination of employees
Okay, let's say you consulted with the best employment lawyer in your village/town/district, they took a close look at whatever relevant contracts and policies your library has, and they have said: "No problem, you can require this."
The next important thing to consider is: should your library require this?
Compelled immunization is an incredibly sensitive area of policy and law. Since the time Ben Franklin started insisting on smallpox immunizations, this public health issue has had passionate rhetoric on both sides of the debate.
I have worked with families whose children have documented contraindications for certain vaccines, and it is not a simple issue. And right now, a public discussion is happening about why people who are African-American might not trust being offered a first round of vaccination. These are life-and-death issues.
That said, those on the front lines of public service, during a time of pandemic, are at higher risk of both getting infected, and spreading disease. Science shows vaccination will mitigate that risk. Thus, under the right circumstances, encouraging such employees to be vaccinated is the right thing to do, and in some cases, employers have made the decision that requiring vaccination is the right thing to do.
The consideration of this question is classic risk management. What critical services is your library providing to the community? What exposure to possible infection do those services create? Does social distancing, PPE, and sanitization mitigate those risks within acceptable tolerances, or would requiring vaccination of employees demonstrably make those employees and the community safer? Are there certain duties that merit requiring immunization, and other duties (jobs performed 100% remotely, for instance) that do not? And critical: is mass employee immunization in step with the approach of your local health department?
There is no cookie-cutter answer to these questions, but a responsible decision to require immunization of employees as part of a well-developed and evolving Safety Plan should answer them all.
Step 5: Developing a robust policy that includes consideration of civil rights, the ADA and privacy
So, let's say your library has followed Steps "1" through "4" and has decided it can, and should, update its Safety Plan to encourage or require immunization of employees.
The next step is developing a policy that:
I also suggest that the library strongly consider ensuring, well in advance, that: 1) the vaccine is available to employees, and 2) that employees don’t have to pay for it. This is because 1) once the library has identified that there are risks in its operations that would be best mitigated through immunization, those activities should be limited until the mitigation is in place, and 2) there can be legal complications if the vaccination requires personal expense. While this advance planning and cost containment is not precisely a legal compliance concern, they are close first cousins, and should be addressed as part of the Safety Plan.
Step 6: If a library decides to require immunization, develop a PR Plan (optional, but a very good idea)
I don't need to tell a library audience that what a public library does on this topic will be scrutinized, criticized, and eventually, also a model for the rest of your community. Since any decision on this point will have its critics, and also (hopefully) its fans, be ready to let your public know, simply and straightforwardly, the basis for your library's decision.
I like the classic "FAQ" approach. Here are two model FAQ's for two libraries that did the legal analysis and safety assessment, and come to the following decisions:
FAQ: I was told the library board is requiring all the employees to be vaccinated for COVID, is that true?
FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan. Now our Safety Plan does include supporting voluntary immunization of employees.
FAQ: Voluntary? So you are not requiring it?
FAQ ANSWER: Our risk analysis and still-limited operations showed that we could meet the community's needs by requiring masks, social distancing, and routine sanitization. We have now added supporting employees in getting vaccinated on a voluntary basis.
FAQ: Will you ever require it?
FAQ ANSWER: Only if our operations change and an updated risk analysis shows us that it is best for our employees and for the community.
Another "FAQ" example, for a library that came to a different conclusion, is:
FAQ: I was told the board is requiring all the employees to be vaccinated for COVID, is that true?
FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan. Now our Safety Plan does include mandatory immunization of employees who are able to be vaccinated.
FAQ: Why is the library requiring employees to get vaccinated?
FAQ ANSWER: Feedback shows that the community needs us providing critical services right now. Our risk analysis showed that in addition to requiring masks, social distancing, and sanitizations, immunization by employees would protect their health, and the community's, while we provide those services.
FAQ: The vaccine is not 100% available yet. Did your employees have to do this on their own?
FAQ ANSWER: Our library worked with [INSTITUTION] to make sure our employees had access to this safety measure, without cost to them.
And that's it.
The important take-away I want to emphasize here is that for individual libraries, there are no quick answers to these questions.
Libraries of all types will be assessing their unique legal and risk positions, and will need to make carefully documented and executed decisions. Libraries within larger institutions may need to fight for consideration separate from other operations. Public libraries will need to consider the heightened transparency and public accountability they operate under. Library systems will be thinking about how they can protect their employees while also supporting their members. And for the employee on the ground, they'll be thinking about keeping themselves, their families, and their communities safe.
By taking careful, deliberate, and well-informed steps, the answers to the member's questions can be found.
Thank you for a vital question.
 December 18, 2020. For many of you, that means you've been shoveling lots of snow (we're looking at you, Binghamton).
 See the case Norman v. NYU Health Systems (2020) (SDNY), 2020 U.S. Dist. LEXIS 180990 *; 19 Accom. Disabilities Dec. (CCH) P19-109
 And in this case, I use "library" in its broadest sense: public, association, and even libraries operating as part of a larger institution (such as a college, hospital, or museum). School libraries, in particular, may both fall under the policies of the institution they are within, but might also have different operations, activities, and exposure that warrant independent risk analysis.
 I can't be more specific than that, since in some cases, there may be "emergency" management clauses that could easily allow the requirement of further safety measures, while in other cases, there could be language that makes it clear such a requirement will have to be a point of discussion. The important take-away here is: if there is a contract in play, don't wing it. Bring in your lawyer.
 The actual answer will of course be in writing and will likely be much more extensive than "No problem!" It should also be included in the records of library leadership to document the appropriate level of risk analysis.
 When I say "controversial," I mean legally. The science is solid: immunization saves lives.
 Ironically, Franklin's young son would die of smallpox before he could be immunized, in part because Franklin's wife Deborah was wary of the new treatment. Franklin was devastated by the loss of his small, precocious son, and some scholars say it caused a rift in his marriage that was never healed.
 If you know your history, you know these fears are based in reality. If you want to learn more, a good place to start is this New York Times article: https://www.nytimes.com/2020/12/06/opinion/blacks-vaccinations-health.html?searchResultPosition=4
 Whenever possible, confirming Safety Plans, and significant revisions of Safety Plans, with the local health department is a very good idea.
 The ADA is a critical consideration here. A good place to start for further information on this is the EEOC, at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. However, this is just a starting place; as you can see by the linked guidance, this part of your policy cannot be a simple cut-and-paste job.
 I know, this sounds cold; and it is. Considering if a library is actually prepared to terminate employees for refusing to meet the requirements should be part of your library's analysis here, too...because once you develop the policy and start requiring it, granting exceptions without justification can create serious legal complications.
 The member asks about waivers for employees who decide not to be immunized. A waiver of liability should only be used if it is part of a well-developed Safety Plan, and customized for the purpose by an attorney.
 Although I just did. Ah, rhetoric.
 I could go on with a few more FAQ's to illustrate the diversity of approaches available (they are kind of fun to write), but I trust you get it.