RAQs: Recently Asked Questions

Topic: "Masks recommended" phase and the vaccinated - 06/16/2021
We are preparing to go to the "masks recommended" phase.  Staff would still be requ...
Posted: Wednesday, June 16, 2021 Permalink

MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

[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!).

Long Answer

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.[1]  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.[2]  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.[3]

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"[4] 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).[5]

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.[6]  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.[7]  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[8]

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.

 

 

OSHA

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:

  1. Grant paid time off for employees to get vaccinated. The Department of Labor and OSHA, as well as other federal agencies, are working diligently to ensure access to COVID-19 vaccinations. CDC provides information on the benefits and safety of vaccinations. Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan if they provide paid time off for employees who decide to receive the vaccine and to recover from any potential side effects from the vaccine.
  2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. Ensure that absence policies are non-punitive. Eliminate or revise policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19. Businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan if they provide paid time off for sick and family leave to their employees due to COVID-19 related reasons. The ARP tax credits are available to eligible employers that pay sick and family leave for qualified leave from April 1, 2021, through September 30, 2021. More information is available from the IRS.
  3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. A key way to protect unvaccinated or otherwise at-risk workers is to physically distance them from other unvaccinated or otherwise at-risk people (workers or customers) – generally at least 6 feet of distance is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.

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.

  1. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. Such workers should wear a face covering that covers the nose and mouth to contain the wearer's respiratory droplets and help protect others and potentially themselvesFace coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. CDC provides general guidance on masks.

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.

  1. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and should include:
    1. Basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene.
    2. Workplace policies and procedures implemented to protect workers from COVID-19 hazards.

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.

  1. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests. This could include posting a notice or otherwise suggesting unvaccinated people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.
  2. Maintain Ventilation Systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated workers in particular. Some measures to improve ventilation are discussed in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace. These recommendations are based on ASHRAE Guidance for Building Operations During the COVID-19 Pandemic. Adequate ventilation will protect all people in a closed space. Key measures include ensuring the HVAC system(s) is operating in accordance with the manufacturer's instructions and design specifications, conducting all regularly scheduled inspections and maintenance procedures, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible, maximizing natural ventilation in buildings without HVAC systems by opening windows or doors, when conditions allow (if that does not pose a safety risk), and considering the use of portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.
  3. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards 29 CFR 1910.1200 and 1910.132133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
  4. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA's Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA's website. Employers should also report outbreaks to health departments as required and support their contact tracing efforts.

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.

  1. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. Examples of violations of Section 11(c) could include discriminating against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and safely wearing their own PPE, such as a respirator, face shield, gloves, or surgical mask.

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.

  1. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. More information on that standard is available on the OSHA website at [link]. Where the ETS does not apply, employers are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm .

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:

  • Close contact– where unvaccinated or otherwise at-risk workers are working close to one another, for example, on production or assembly lines. Such workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
  • Duration of contact – where unvaccinated or otherwise at-risk workers often have prolonged closeness to coworkers (e.g., for 8–12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
  • Type of contact – unvaccinated or otherwise at-risk workers who may be exposed to the infectious virus through respiratory droplets in the air—for example, when unvaccinated or otherwise at-risk workers in a manufacturing or factory setting who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.
  • Other distinctive factors that may increase risk among these unvaccinated or otherwise at-risk workers include:
    • A common practice at some workplaces of sharing employer-provided transportation such as ride-share vans or shuttle vehicles;
    • Frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and
    • Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

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:

  • Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least 6 feet of distance from others at all times, including on breaks.
  • Stagger workers' arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.

In workplaces (or well-defined work areas) with processing or assembly lines where there are unvaccinated or otherwise at-risk workers:

  • Working on food processing or assembly lines can result in virus exposure because these workplaces have often been designed for a number of workers to stand next to or across from each other to maximize productivity. Proper spacing of unvaccinated or otherwise at-risk workers (or if not possible, appropriate use of barriers) can help reduce the risks for such workers.

In retail workplaces (or well-defined work areas within retail) where there are unvaccinated or otherwise at-risk workers:

  • Suggest masks for unvaccinated (or unknown-status) customers and other visitors.
  • Consider means for physical distancing from other people who are not known to be fully vaccinated. If distancing is not possible, consider the use of barriers between work stations used by unvaccinated or otherwise at-risk workers and the locations customers will stand, with pass-through openings at the bottom, if possible.
  • Move the electronic payment terminal/credit card reader farther away from any unvaccinated or otherwise at-risk workers in order to increase the distance between customers and such workers, if possible.
  • Shift primary stocking activities of unvaccinated or otherwise at-risk workers to off-peak or after hours when possible to reduce contact between unvaccinated or otherwise at-risk workers and customers.

Unvaccinated and otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans.

  • Notify unvaccinated and otherwise at-risk workers of this risk and, to the extent feasible, help them limit the number of such workers in one vehicle.
  • Make sure all unvaccinated and otherwise at-risk workers sharing a vehicle are wearing appropriate face coverings.

 



[1] 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.

[2] Considering what's at stake, I appreciate that.

[3] "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.

[4] Found at https://www.osha.gov/coronavirus/safework as of June 14th, 2021.

[5] 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!

[7] This is how the law changes, after all.

[8] This means no relaxing of social distancing and face-covering rules; they are at pre-May 19th levels.

Tags: COVID-19, COVID-19 Vaccine, Emergency Response, Masks, Safety Plan

Topic: Postal problems and mask mandate changes - 05/17/2021
Our postman refuses to wear a mask in the building even though it is policy and a NYS mandate. Whe...
Posted: Monday, May 17, 2021 Permalink

MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

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)[1], because I foresee more situations like this are going to arise.[2]

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,[3]  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[4]) 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[5].

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[6]) 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[7]:

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.[8]

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:

  • Safety first (including your safety)
  • Also: People first (starting with people's safety, which is both physical and emotional well-being)
  • Routinely check the applicable requirements (designate a person to do this daily)
  • As needed, update your Safety Plan
  • When enforcing a policy, to the greatest extent possible, work with a buddy
  • Boards and directors: stay nimble

We're getting there.

More soon....



[1] 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.

[3] 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]. 

[4] For instance, if the was the ILL service, we'd look at the contract, not governing regulations.

[5] 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...."

[7] 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.

[8] And, throughout the summer of 2021, doubtless many other developments.

Tags: COVID-19, Emergency Response, Masks, Safety Plan

Topic: Patron refusing to wear mask (private association library) - 01/13/2021
We are a private association library. There is a "difficult" patron who sits on a bench ...
Posted: Wednesday, January 13, 2021 Permalink

MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

***THIS ANSWER IS NOT FOR PUBLIC LIBRARIES***[1]

Here is what else you can do:

Any private association library currently[2] operating in the State of New York is required[3] to have a pandemic Safety Plan.

A library’s pandemic Safety Plan is not set in stone; it should be a living document that evolves as the library’s operations and our overall knowledge about COVID transmission change.

With that in mind, revising its Safety Plan to ensure the physical layout of its curbside operations could be a good solution to this member’s situation.[4]

Here are some possible revisions to accomplish this:

  • Modify the Safety Plan so external seating in close proximity to all entrances/exits and curbside sites is removed or roped off for all but emergency or ADA use; or
  • Modify the safety plan so the bench is within a perimeter that is barred for use by the public during business hours; or
  • Modify the Safety Plan to enhance the size of pick-up zones where only employees and those quickly picking up curbside service may enter, and set up barriers (tables, Plexiglass, cones, bollards) to emphasize the increased size of the zone; and
  • For any solution: use new signage with clear language and graphics to emphasize any changes or updates to the Plan, so people can adhere to the new rules.

NOTE: As with any adoption or revision of a Safety Plan, to the greatest extent possible, check in with your local Department of Health (I appreciate that in some places, the Department of Health may be so overwhelmed that this "check-in" is impossible).

Since it is best to have your library board "on board" with the library's Safety Plan, and any changes to it, below is a proposed resolution for adopting such a change:[5]

BE IT RESOLVED, that to ensure the Library's Safety Plan is evolving as our information, operations, and needs evolve, the board adopts the attached [date] version of the Safety Plan, effective [date/immediately].

Now, all that said, I know there could still be a few hiccups (plans on paper often get shredded by reality).  Here is the obvious “hiccup” I see, and a proposed way to address it:

If the "difficult" patron suddenly discovers that the bench they like to use and socialize from is suddenly not there/unavailable, and they have a strongly negative reaction—yelling abuse, or even being physically violent—that is when to call law enforcement, and of course to invoke your Code of Conduct and consider barring or suspending them from the library, as circumstances warrant. 

But hopefully, with some modifications to the Safety Plan, and good communication of the changes, this concern can be resolved in a way that not only addresses this specific issue, but deters any other visitor who could pose such a threat.

Please let us know[6] if this approach proves effective.

 



[1] I trust public libraries know why this guidance is not for them, but since it is an important reason, I'll footnote it: adjustments to practices that can be demonstrably tied to a concern caused by one individual need to be carefully developed to ensure they cause no constitution-based due process or disparate treatment concerns.  Basically, a public library can take the exact same measures I propose in here for this private association library, but must be even more cautious to ensure their actions are not—and cannot reasonably be perceived as—discriminatory or unfair.

[2] This answer is being composed on January 11, 2021.

[4] Although the current Safety Plan templates posted on the NY Forward site set out a requirement of six feet, there is nothing saying that an established safety perimeter can't be more (I was at a hotel that used 15 feet, and gave us our room key-cards via a system that felt like I was at a drive-up teller).

[5] Per Education Law 226(2), the executive committee of your board may have the power to adopt this change without a full meeting, but CHECK YOUR ASSOCATION LIBRARY'S BYLAWS to make sure you can use this approach; if there is no executive committee, your library can follow its procedures for a special meeting or an e-mail vote of the full board.

[6] adams@losapllc.com (Stephanie "Cole" Adams) and jill@losapllc.com (paralegal Jill Aures), thanks.

 

Tags: Association Libraries, COVID-19, Emergency Response, Public Health, Safety, Safety Plan, Masks

Topic: Face shields and COVID safety guidelines - 10/22/2020
New state guidelines list face shields as acceptable face coverings: https://regs.health.ny.gov/v...
Posted: Thursday, October 22, 2020 Permalink

MEMBER QUESTION

New state guidelines list face shields as acceptable face coverings:
https://regs.health.ny.gov/volume-1a-title-10/content/section-66-32-face-coverings
However, people often spend quite a bit of time in the library, especially using our computers. We would like to require that they wear actual cloth (or paper surgical) face masks. Are we permitted to make our own safety rules? It seems to me, that just as we can prevent roller skating in the library, we should be able to set other safety rules for the sake of staff and patrons.
Thank you.

WNYLRC ATTORNEY'S RESPONSE

This question came into "Ask the Lawyer" with a request for a quick turnaround, so we'll keep this brief.

Are we permitted to make our own safety rules?

Yes...and no.[1]  But that doesn't matter for this question, because the member's real objective is...

 "We would like to require that they wear actual cloth (or paper surgical) face masks."

...which a library with a well-developed, uniformly applied Safety Plan can absolutely do.

Why is that?

As of this writing[2], there is documented evidence that the CDC is still weighing the advisability of face shields.  Here is what they have to say:

Image depicting a cautionary warning that face shields and gaiters may not be effective.

 

(For the less cartoon-oriented[3], the CDC says it like this:)

Screenshot of CDC mask guidance regarding the COVID-19 pandemic

Of course, at the same time, as the member points out, the State of New York now allows face shields to "count" as a face cover:

66-3.2 Face-Coverings....

(i) Face-coverings shall include, but are not limited to, cloth masks (e.g. homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields.

 

Meanwhile, the REALMS study has hit the library community with THIS cold cup of coffee[4]:

Screenshot of information from the REALM study regarding transmission concerns.

 

Libraries should be paying attention to all of these evolving resources[5], and should regard their Safety Plan as a "living document" that evolves with that information.  This will help libraries develop a plan that can help them help patrons adhere to CDC guidelines like this one:

Screenshot from a library homepage regarding curbside pickup rules.

The bottom line?  If your library bases its access and services on current information, is careful to adhere to its obligations under the ADA, and adheres to a Safety Plan that provides—based on the combined input from such reliable sources—that certain areas may only be accessed by those wearing faces masks (and/or gloves, and/or only if they agree to spray down certain surfaces, and/or only by a certain number of people a day), it may do so.

It all comes down to having a Safety Plan based on your library's unique size, design, staffing capacity, and collection materials.  With a plan that is linked to established factors, the best guidance we can get in uncertain times, and reliable enforcement, anything is possible.[6]

Thanks for an insightful question!



[1] The answer to THIS question is about 15 pages and has 20 footnotes.  Aren't you glad we found a way to make it snappier?

[3] I am "cartoon-oriented."  Whenever something can be conveyed effectively via icon or cartoon, it should be.  Of course, as a lawyer, I experience no shortage of words.

[4]  https://www.oclc.org/realm/faq.html.  On a side note, how bad is my DIY mark-up of this content?  It looks like I am trying to draw a squished amoeba. 

[5] My "word of the day," which I learned as I researched this answer, is "fomite" (infected objects). Given what we've all had to deal with in 2020, I am sure I have seen the word before, but was too busy learning the concepts like "zoonotic" & "contact tracing" for it to sink in.

[6] Even wearing a masks while roller skating in a library (but I'd check that one out with your insurance carrier).

Tags: COVID-19, Emergency Response, Policy, Safety, Masks, Public Health

Topic: Does a mask requirement policy violate the ADA? - 7/8/2020
Our library has taken the next step in re-opening and is welcoming the public back into our buildi...
Posted: Wednesday, July 8, 2020 Permalink

MEMBER QUESTION

Our library has taken the next step in re-opening and is welcoming the public back into our building.  We have a Safety Plan, and we have posted signage in key areas to help the public follow our safety practices, including staying at least six feet apart whenever possible, and every visitor using hand sanitizer upon entry and (if over the age of two) wearing face coverings at all times.

A patron who cannot wear a mask raised the possibility of our policy being a violation of the Americans With Disabilities Act (ADA).  They patron is concerned that this policy discriminates against those who cannot “medically tolerate” a mask.

Are we in the wrong to require masks?

WNYLRC ATTORNEY'S RESPONSE

It is not wrong to require patrons to wear masks.  As of this writing (July 7, 2020), qualified experts agree that masks remain one of the most effective ways to stop the transmission of COVID-19.[1]  In an environment storing circulating materials[2] and shared space, this is a critical step for reducing the risk to library employees, and the public.

That said, even the most well-intentioned efforts can step on the rights of others, including rights under the ADA.  How does a library promote safety, while abiding by the ADA?

The key is to implement and enforce the mask-wearing requirement in a way that doesn’t overstep or unnecessarily limit the access of those living with a disability.[3]

Here is a step-by-step process to help a library assess, draft and enforce a mask-wearing requirement so it is harmonized with the protections of the ADA.

NOTE: For this exercise you will need: a copy of your Safety Plan, the person or team who writes/updates the Safety Plan, a copy of your library’s floorplan, and the documents linked in the steps below. 

Estimated time of activity: 1.5 hours.

Step 1

Isolate the language in your Safety Plan requiring patrons to wearing masks. This is your “Patron Mask Enforcement Language” (“PMEL”).[4]

 

Step 2

Look at your PMEL. 

Is it a Uniform Use requirement, such as: “All patrons must wear masks upon entry, and the mask must remain in place at all times during your visit, in all areas.”

Or

Is it a Circumstantial Use requirement, such as: “All patrons must wear masks upon entry, and the mask must remain in place at all times during your visit, except when seated in our Wipe Down Reading Area,[5] where seating is at least 7 feet apart, and patrons must spray down the surfaces in their zone after use (limit 20 minutes).”

 

Step 3

Look at the floor plan.  Is there ANY place in the library where current CDC-advised safety practices can be used to create a place for “Circumstantial Use” of masks?  In other words, is there any place where, after considering all the risks to mitigate through measures other than a mask, can you offer an official mask-free zone to patrons?

For many small libraries, the answer will be a hard “NO.” The space will be just too small.  And for many libraries with more space, the answer will again be a hard “NO,” based on budget; they may have the space, but the extra resources spent to monitor and sanitize the area are just too costly.

When the Safety Plan team reaches a conclusion, document the analysis, and if any zone can be so converted, mark it on the floor plan (which you will attached to the Safety Plan).  For example: The Safety Plan Team met on DATE to review the floor plan and see if any area could be converted into a mask-free zone for patrons.  Based on space, available furniture, costs, and proximity to circulating materials, the team concluded [whatever you concluded].

 

Step 4

If your library does develop a mask-free zone for patrons, the rules and cleaning protocols for the area must be robustly detailed in your Safety Plan.  The supplies for patrons to do their own spray-down upon arising from the designated seating must be routinely re-stocked.  The rules must be well-posted and strictly enforced. 

 

Step 5

Now, back to the ADA.  Does your Safety Plan have a section on how a patron can request accommodations while the library is operating under the Plan?  If the answer is “no”, this is a good thing to consider adding.

Why?

I have written previously about libraries’ shifting obligations under the ADA.[6]  All of that previous material applies to this situation, but of course, now we have the extra layer of COVID-19. 

Always, with ADA, the goal of the library should be to find a way to ensure access.  That said, some access will not be as a patron envisions, and some requested accommodations are just not implementable.  Because of this, as I wrote at the top of this answer: “The key is to implement and enforce the mask-wearing requirement in a way that doesn’t overstep or unnecessarily limit the access of those living with a disability.”  When modifying operations to reduce transmission of COVID-19, that means posting information about accommodations and access right along with the other signage you’re developing and posting as part of the Safety Plan.

So with all that as background, “Step 5” is answering this question:

“Does our Safety Plan address access and accommodations as required[7] by the ADA?”  If the answer is “no,” continue to Step 6.

 

Step 6

If you have decided you must add some ADA-related language to your Safety Plan, you can do so by answering the following questions:

a.  How does a person contact the library to request reasonable accommodations during a time of adjusted operations?

b.  What reasonable accommodations can your library be ready to offer to the following common safety measure-related issues:

  • inability to wear a mask
  • allergy to hand sanitizer
  • chemical sensitivity (triggered by increased use of cleaning products)
  • requested assistance requires library employee to get closer than six feet (for instance, help with using computer)
  • patron is especially vulnerable to COVID-19 due to other risk factors

Some of the requested accommodations for the above issues will be simple.  Can’t use hand sanitizer?  We’ll provide water, a disposable towel, and soap.  Can’t wear a mask?  We don’t have a mask-free zone, but we’ll be happy to assist you over the phone and you can pick your books up curbside.  Need extra help at the computer?  We’ll figure it out, but our employees have been instructed to stay at least six feet apart unless behind a plexi window, and that is non-negotiable.

Some accommodations are harder.  You’re allergic to the spray-down solution we bought in bulk?  Sorry, we can’t buy a different gross of spray until next month; please let us know what ingredient bothers you and we’ll see if our procurement folks can find something different. Until then, we’ll be happy to assist you over the phone and you can pick your books up curbside.  You have pre-existing conditions that mean you can’t go in a public area, even if there is a Safety Plan being enforced?  We are so sorry to hear that. We miss you.  We wish this whole thing was over.  We are here for you by phone, e-mail, or the internet, and can work with a designated person who will pick up your books.

The key is to ensure that people know how to direct the requests, and that the library is ready to assess them promptly. 

A good way to organize this is to create a section of the Safety Plan providing for signage stating: “For patrons needing disability accommodations while the library is operating under conditions to reduce the transmission of COVID-19, please call NAME at NUMBER, or write to EMAIL or ADDRESS.  You will also find this information in our Safety Plan.  The library is committed to safe access for all.”

 

Step 7: Feeling Confident

Okay, you have followed the six steps for assessing your Safety Plan and building out its provisions with regard to ADA.  Do you feel confident in your approach?[8]  For teams that want a little extra “oomph” in their handling of COVID-19-related accommodations requests, here is some law:

First, here is the language from New York’s Executive Order 202.34, regarding the ability of businesses to require and enforce the use of masks:

Business operators and building owners, and those authorized on their behalf shall have the discretion to ensure compliance with the directive in Executive Order 202.17 (requiring any individual over age two, and able to medically tolerate a face-covering, be required to cover their nose and mouth with a mask or cloth face-covering when in a public place), including the discretion to deny admittance to individuals who fail to comply with the directive in Executive Order 202.17 or to require or compel their removal if they fail to adhere to such directive, and such owner or operator shall not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of such directive. Nothing in this directive shall prohibit or limit the right of State and local enforcement authorities from imposing fines or other penalties for any violation of the directive in Executive Order 202.17.  This directive shall be applied in a manner consistent with the American with Disabilities Act or any provision of either New York State or New York City Human Rights Law, or any other provision of law.

As reviewed in Step 6, “consistent with the Americans with Disabilities Act,” does not mean that those who cannot medically wear a mask are automatically allowed maskless entry as an ADA accommodation.  Rather, a place must see if the risk posed to the public by the maskless individual can be mitigated by a “reasonable” accommodation.  For libraries that can have a mask-free zone, they can be.  For a tiny library where any breath will land on circulating materials, it likely cannot. 

The key to doing this right is thoughtful assessment and documentation: replying to ADA requests should not be a gut-check exercise.  It should be considered, thoughtful, and documented as shown in steps 3 through 6.  Whenever possible, a library assessing accommodations request should consult a lawyer.

Second, here is a pep talk from the US Department of Justice, the body who enforces ADA:

The Department of Justice Warns of Inaccurate Flyers and Postings Regarding the Use of Face Masks and the Americans with Disabilities Act

Assistant Attorney General for the Civil Rights Division Eric Dreiband reiterated today that cards and other documents bearing the Department of Justice seal and claiming that individuals are exempt from face mask requirements are fraudulent.

Inaccurate flyers or other postings have been circulating on the web and via social media channels regarding the use of face masks and the Americans with Disabilities Act (ADA) due to the COVID-19 pandemic. Many of these notices included use of the Department of Justice seal and ADA phone number.

As the Department has stated in a previous alert, the Department did not issue and does not endorse them in any way. The public should not rely on the information contained in these postings.

The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.
The public can visit ADA.gov or call the ADA Information Line at 800-514-0301 (voice) and 800-514-0383 (TTY) for more information.

[emphasis added]

So, while ADA, or the disability protections of the New York Human Rights law, most certainly could apply to a person denied access to a covered institution, as can be seen, it’s just not that simple.  If your library builds out the ADA provisions of its safety plan, listens to ADA-related requests carefully, and assesses them promptly, you can feel confident that you are doing your best to provide ADA access.  And if you have the slightest uncertainty about any of those steps, you should contact a lawyer.

However, having seen how these things go, here is a final thought: people who are making ADA requests can feel vulnerable.  It can be scary to admit a disability; it is an act of trust to request accommodations.  On the flip side, many people with disabilities have learned their rights, and fight for them as warriors.  Many parents of children with disabilities have learned to be ardent advocates. 

All of this can create tension (at any already tense time).  So any ADA request, no matter what the tone or context, should be met with a simple “I hear this request.  We will work on this as quickly as possible.  This is important to us.”  Then get the answer, and document it, taking care to not let too much time pass.

Thank you for an important question.



[4] I really tried to come up with a sassy acronym for this.  The best I could do, even after 2 cups of coffee, was “MAP” for “Masking All Patrons.”  That sounds AWFUL so “PMEL” it is.

[5] I won’t lie.  I didn’t try to come up with a better phrase than “Wipe Down Reading Area.”  But I am sure someone out there will.

[6]  https://www.wnylrc.org/ask-the-lawyer/raqs/65 Yes, this is one of the documents to have in the work packet.

[7] Bearing in mind that different libraries will have different requirements.

[8] NOTE: While this Executive Order does not mention the other requirements a business can make a condition of entry, since a library can make adherence to its Safety Plan a condition of the standing Patron Code of Conduct, if a library so chooses, it has more than just the Order to address concerns (this also assures all appropriate due process).  See https://www.wnylrc.org/ask-the-lawyer/raqs/138 for a discussion of how to enfold your Safety Plan into your Code of Conduct.

Tags: Accessibility, ADA, COVID-19, Emergency Response, Reopening policies, Masks, Public Health, Safety Plan

Topic: [2020 Pandemic Date Specific] Mask and PPE library policies - 5/5/2020
Can a library prevent someone from coming into the library if they refuse to wear a mask? I know t...
Posted: Tuesday, May 5, 2020 Permalink

MEMBER QUESTION

Can a library prevent someone from coming into the library if they refuse to wear a mask? I know that library behavior policies would need to be broadened to include mask-wearing. Are libraries required to provide a mask for the public - and what if a person wears the mask improperly - can they be asked to leave?

WNYLRC ATTORNEY'S RESPONSE

New York has numerous “types” of libraries, serving a diverse array of locations.  All of them are empowered to take the steps needed to serve their communities safely.

For libraries who want to do just that—knowing it will be a vital part of their community’s response and recovery—here is how to enact and enforce the use of appropriate personal protective equipment (PPE).

Step 1

Assess your library’s status under the current Executive Orders.  Does your library regard itself as exempt from the Orders due to status as a governmental entity (like a school)?[1]  Or has your library been operating under compliance with the 100% workforce reduction…and thus, subject to further such restrictions (or them being eased)?

If your library is subject to the Executive Orders, linking your policy to future Orders is a good idea.  That’s why you’ll see that as a variable in the template, below.  And if your library concluded it didn’t need to follow them, well, that part doesn’t apply to you.  

 

Step 2

Assess what operations your library will resume.  Will you resume lending books, but restrict reading rooms?  Will you encourage curbside pickup, or perhaps lower your building capacity to ensure social distancing?

This step assumes that the return to full services might be incremental—but with the resumption of services tailored to the needs of your community.  It is where the customization kicks in.

 

Step 3

Once your library has confirmed which activities will resume, select the appropriate safety protocols for those operations.

This is why this will not be an exercise in one-size fits all.  Some libraries may decide to expand reading rooms or acquire additional electronic devices to loan.  Some will need masks, some may need gloves, and others might adopt different safety measures.  What’s important is that the measures be tailored to the activity.

As a starting place[2] for that selection, I really like this function-centered guidance from OSHA:

https://www.osha.gov/SLTC/covid-19/controlprevention.html#interim

NOTE on this guidance from OSHA: While the common thinking might be that libraries are primarily “customer service” environments (as the term is used by OSHA), many libraries have back end and programming operations that are even more interactive and tactile than retail.  That’s why I like OSHA’s approach for this—it sorts COVID-19-related safety practices by function (of course, ALA and other library-specific resources will further distill and assess these resources for libraries[3]).

 

Step 4

If the option is available to your library, I strongly recommend confirming your library’s operational choices and related safety practices with your county health department.  Your local health officials may even have some thoughts about unique considerations for your locality (after all, that is their job).  This is also a great way to show the public that your library has thought these measures through thoroughly, that your choices are rationally related to your activities, and that they have credentialed back-up.

 

Step 5

As the member writes, once you have selected your operations and confirmed your safety measures, add the measures (temporarily) to your library’s Code of Conduct.

Here is a template policy for doing that (variables are in yellow, including whether or not your library must abide by the current Executive Orders):

The [Insert] Library is committed to serving its community during hard times and good.

The year 2020 has brought unprecedented challenges to our nation, state, and area of service.

To continue serving our patrons during this difficult time, while placing the health and safety of our community at the forefront, the Library Board of Trustees has adopted the below Temporary Safety Practices Policy. 

The safety measures in this policy have been confirmed with the [Insert] County Health Department.

The board’s authority to adopt these measures is found in our charter, bylaws, New York Education Law Sections 255, 260, 226, 8 NYCRR 90.2, and Article 2 of the Not-for-profit corporation law.  We also consider it our duty to develop these measures to keep our services accessible at this time. 

Staff at the [Insert] Library have the authority to enforce these measures like any other of the Library’s Rules.  Concerns about this policy should be directed to [Insert name]. Thank you for honoring these measures, which are designed to keep our community safe, while allowing access to the library.

[Insert Library] Temporary Safety Practices

Scope of Temporary Safety Measures

The [Insert] Library operates per relevant law and Executive Orders, including those pertaining to mandatory workforce reductions.  Therefore, the temporary practices in this Policy may be further modified as needed to conform with relevant Orders.

Activities

Until the board votes to revoke this temporary policy, only the following routine activities may be performed on site at the library:

[list activities]

Safety Practices

Until the board votes to revoke this temporary policy, the library will require all people on the premises to abide by the following safety practices:

[based on activities and confirmed safety practices, including but not limited to use of particular PPE, insert]

ADA

In the event any safety requirement is not practicable on the basis of a disability, please contact [Insert name] to explore a reasonable accommodation.

Communication

To aid the community in honoring these requirements, the Library will transmit this policy through social media, and use a variety of health authority-approved, age-appropriate, multi-lingual and visual means to transmit this message in a manner consistent with our mission and our identity as a welcoming and accessible resource to the community.

Code of Conduct

Adherence to these practices shall be enforced as a requirement of the Library’s Code of Conduct until such time as this temporary policy is revoked.

 

In developing this guidance, I have considered the long line of federal cases related to the library access (starting with Kreimer v Bur. of Police).[4]

New York has a vivid array of people devoted to civil liberties, and there is a chance a community member could feel that conditioning library access on temporary protective measures adopted in the interest of public health could violate First Amendment or other rights.  This is why careful consideration of what operations your library will resume, and enforcement of only those safety measures related to those operations (steps 1 and 2), are so critical.

The First Amendment tests of such measures will vary based on the circumstances,[5] but the goal of combining a clear policy with well-documented, informed decision-making, good communication, and the backup of health authorities, is to avoid the need for such legal testing in the first place!

As with all things template, the suggested language above should be modified to fit your unique library.  If there is a local attorney versed in First Amendment and municipal law, this is a good time to bring them in to review your final product.[6]  The town attorney for your municipality will have had to address similar First Amendment/safety concerns (and is probably doing a lot of that right now), so they might be a good pick.

And now, with all that as background,[7] to address the members’ specific questions:

Can a library prevent someone from coming into the library if they refuse to wear a mask?

Yes (but follow the steps above).

Are libraries required to provide a mask for the public?

No (but hey, it would be nice, especially if you can get them donated).

And what if a person wears the mask improperly - can they be asked to leave?

Yes (but take care to consider any implications under ADA[8]; some people might need to use alternate PPE).

Thank you for a great question.  I wish you safe operations as you serve your community.

 



[1] Whatever your library decides should be consistent with its analysis in any decision to apply for the Paycheck Protection Program, or other aid.

[2] Of course—especially as the mother of a Type1 diabetic and Gen Xer with parents almost 80[2]— as a finishing place, I like a world where we no longer need to socially distance, maniacally sterilize, and use PPE…but we don’t know when we’ll get that world.

[3] I like writing guidance for libraries because at a certain point, you can assume they know how to find the type of resources one is describing.  It’s like telling a lawyer that something is in the penal law—I assume they can just find what I’m talking about.

[4] Citation: 958 F2d 1242 [3d Cir 1992]

[5] A recent good example of how First Amendment tests can turn on precise circumstances can be seen in Wagner v Harpstead, 2019 US Dist LEXIS 220357 [D Minn Nov. 12, 2019, No. 18-cv-3429].

[6] This First Amendment concern is less critical for association libraries, but since such libraries also have a vested interest in maximizing access to their areas of service, it’s a good exercise for them, too.

[7] I do run on, I know.  Occupational hazard.

Tags: ADA, COVID-19, Emergency Response, Policy, Masks, Public Health

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