Can an employer require a negative COVID test before an employee comes to work? We have discussed it on our [public library system] member directors list but have not come up with a clear yes or no answer.
Here's something positive and affirming I can say: it's possible that the members expressing different opinions on the member directors' list are actually all correct.
That’s because, while I can't give one "clear yes or no answer" to this question, I can give five...five answers based on different scenarios about the facts "before an employee comes to work," including their symptoms, COVID exposure, and the safety measures needed to reduce the risk of COVID transmission in their workplace.
Here the five scenarios are:
Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work, if an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19.
No, an employer does not have to, and has no basis to, require a negative COVID test before an employee comes to work, if the employee is working 100% remotely at home or in a location not at all controlled or at the direction of the employer.
No, an employer may not require a negative COVID test before an employee comes to work, IF the employee has a medical basis to not be tested; without a negative test, however, if certain screening factors were tripped (such as those in item 2, above) the employer will have to enforce other prescribed measures to comply with state requirements and reduce the risk of transmission within the workplace, such as a mandatory quarantine.
Yes, an employer can require a negative COVID test before an employee comes to work, if an established safety plan based on applicable OHSA guidance and the employee's job duties warrant that level of caution.
I am not surprised you were unable to find a clear answer from a single reliable source, as these five scenario-based answers had to be cobbled together from two separate documents from the New York State Department of Health, which when combined, require employers to:
"Implement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days. Assessment responses must be reviewed every day and such review must be documented."
"An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing." [emphasis added]
"If an employee tests positive for COVID-19, regardless of whether the employee is symptomatic or asymptomatic, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic."
"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is experiencing COVID-19 related symptoms, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms."
"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is not experiencing COVID-19 related symptoms, the employee may return to work upon completing 14 days of self-quarantine."
"If an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19, the employee must be separated and sent home immediately and may return to work upon completing at least 10 days of isolation from the onset of symptoms OR upon receipt of a negative COVID-19 test result." [emphasis added]."
And there you have it. I am not sure if this will make things clearer, but hopefully I have added some clarity to the uncertainty.
 In this case "work" means the "work site," as in an established office or location controlled by the employer where an employee will report to work, or a site they are directed to appear at. For this question, "work site" does not mean a home office or other space the employer does not control/send the employee to.
 I know I covered this in footnote #1, but it bears repeating: based on the published guidance, NY employers are required to conduct mandatory screenings to reduce the transmission of COVID in areas they are responsible for, and areas they serve as part of their work, but not an employee's home office. Requiring a test when there is no logical nexus between the employer's obligations and the request for medical information runs the risk of an ADA violation (not a slam-dunk risk, but enough of a risk to make it a bad idea).
 This answer is based on the Americans with Disabilities Act; if an employee has a disability that means they cannot medically tolerate a test (I have not heard of this, but I imagine it is possible), they will have to provide an alternate means of ensuring safety if such an accommodation is reasonable.
 This answer is based on the needs of work places with the highest levels of risk and risk management.
 "The New York State Department of Health considers a "close contact" to be "someone who was within 6 feet of an infected person for at least 10 minutes starting from 48 hours before illness onset until the time the person was isolated. The local health department should be contacted if the extent of contact between an individual and a person suspected or confirmed to have COVID-19 is unclear. "
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.
Should our library have an accessibility statement? And should we consider accessibility when making purchases?
Yes, and yes.
Every library, historical society, archives, or museum, if open to the public, should have accessibility information posted at its premises, in its printed brochures and fliers, and on its website.
While it can (and often should, based on the size and type of the library), this "accessibility statement" does not have to cite the ADA. Rather, it can just be a simple statement about your institution's commitment to access, along with some basic information about what common accommodations are on site—and critically, how to get in touch if a person needs more.
Here is some sample language:
The ABC Library is committed to access for all. We currently [insert all current accessibility features, including ramps, bathrooms, parking, adaptive technology, etc.]. As renovations are planned and new items are purchased, our accessibility grows.
Questions about our resources and any accommodations can be directed to [PERSON] at [PHONE] or [EMAIL]. To ensure timely and thorough assessment of accommodation requests, we will confirm the details of the request with you, assess the request, and let you know the options we can offer as soon as possible.
Requests related to specific events should ideally be received at least two weeks before the event, to allow time for proper assessment and planning.
Some requests might not be within the scope of what we can do, or may be met through alternatives, but the ABC Library board of trustees, director, and employees are committed to making our library the best it can be for everyone in our community.
Further, every library should have an accessibility/universal design section in its purchasing/procurement policy.
Just something simple, like:
When generating Request for Proposals and soliciting quotes, the ABC Library will assess the goods and/or services to be purchased and develop criteria to: 1) assure ADA compliance; 2) incorporate consideration of universal design; and 3) position the library to promote accessibility based on established, current, and properly sourced research.
Why is this important? Well, aside from being a kind, considerate thing to do, it is a form of legal risk management for facilities required to follow the ADA.
Pre-emptive outreach on accessibility helps people plan visits and find ways to access services, rather than look to the law for alternatives. And by building accessibility priorities into the earliest phases of procurement, your institution makes sure it thinks about accessibility before a purchase becomes a problem.
Once a library resolves to do these two things, there are endless resources out there on how to write policy, compose statements, and how to consider the ADA when making purchases, designing signage, and updating websites. But resolving to make these things a priority is the first step. So...
Should your library have an accessibility statement? And should your library consider accessibility when making purchases?
Yes, and yes.
 Even an institution with a 200-year-old building with no elevator on a street with no parking can be welcoming if the right signage and alternate means of accessing services have been communicated and properly arranged beforehand.
In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask customers to leave the public building if they are exhibiting any visible COVID symptoms? If so, are there benchmarks for how extreme symptoms should be or how policies should be worded? There are of course patron behavior policies in place allowing for the removal of anything disruptive, which can include noise or inappropriate behavior. There are some members of our leadership team who believe our safety reopening plan should include provision specifically mentioning symptoms of COVID-19 and the staff's/ library's right to remove them if symptoms are exhibited. There are other concerns that library staff are not medical professionals and we are not able to determine if a few sneezes and coughs are common colds, allergies or COVID. Attached is our library's current reopening plan.
As the member writes, it is very difficult to determine if some physical factors—coughing, a flush, seeming malaise—are in fact symptoms of COVID-19. Confronting a patron with suspected symptoms can also lead to concerns impacting community relations, privacy, and the ADA.
A good Safety Plan addresses this concern, without requiring patrons to be removed mid-visit from the library.
To position libraries to address the impact of patrons with suspected symptoms, New York's "Interim Guidance for Essential and Phase II Retail" (issued July 1, 2020) states:
CDC guidelines on “Cleaning and Disinfecting Your Facility” if someone is suspected or confirmed to have COVID-19 are as follows:
[emphasis on "suspected" has been added]
In other words: your Safety Plan, as informed by the most recent guidelines, should leave nothing to chance. By using this procedure, library staff are never put in the position of having to guess, ask, or consider if a patron's coughing, sneezing, or other behaviors are COVID-19...rather, the moment the possibility is "suspected," the Plan kicks into action.
Of course, if a patron is properly masked, some of the risk of exposure is limited, even if they are infected (this is why we wear masks and identify areas with six feet of clearance in the first place). And if a patron removes their mask mid-visit, refuses to keep appropriate distance, or refuses to spray down equipment after using it, THAT person can be asked to leave, simply as a matter of policy—whether they are exhibiting symptoms, or not.
So to answer the question: no, it is not advisable to ask patrons to leave the public building if they are exhibiting any visible COVID symptoms, for exactly the reasons the member provides. Rather, it is required that your Safety Plan keep people distant from each other, and that the library be ready to address any real or suspected exposure as quickly and effectively as possible.
That said, having signage that reads "Safety first! Patrons who are concerned about transmission of germs can arrange curbside service by [INSERT]" is a great way to remind people that if they are having an "off" day, there are many ways to access the services of your library.
I wish you a strong and steady re-opening.
 This answer does not apply to employees and visitors like contractors, who must be screened.
 Found as of July 25th, 2020 at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/RetailMasterGuidance.pdf
 Found as of July 25th, 2020 at https://coronavirus.health.ny.gov/system/files/documents/2020/06/doh_covid19_publicprivateemployeereturntowork_053120.pdf
 I note that the DOH's "Interim Guidelines" do not include guidance to staff with suspected (as opposed to confirmed) exposure. If an employee feels they were exposed to a suspected case of COVID-19, however, that will impact their answers on their next daily screening, which will trip consideration of whether they can report to work.
 Or whatever other safety measures a library has identified. It is inspiring to read the variety of tactics out there, as listed at https://www.nyla.org/covid-19-library-reopening-plan-database/?menukey=nyla.
 Of course, if a patron is having a medical event and you have an immediate concern for their well-being, call 911.
Our library has taken the next step in re-opening and is welcoming the public back into our building. We have a Safety Plan, and we have posted signage in key areas to help the public follow our safety practices, including staying at least six feet apart whenever possible, and every visitor using hand sanitizer upon entry and (if over the age of two) wearing face coverings at all times.
A patron who cannot wear a mask raised the possibility of our policy being a violation of the Americans With Disabilities Act (ADA). They patron is concerned that this policy discriminates against those who cannot “medically tolerate” a mask.
Are we in the wrong to require masks?
It is not wrong to require patrons to wear masks. As of this writing (July 7, 2020), qualified experts agree that masks remain one of the most effective ways to stop the transmission of COVID-19. In an environment storing circulating materials 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.
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.
Isolate the language in your Safety Plan requiring patrons to wearing masks. This is your “Patron Mask Enforcement Language” (“PMEL”).
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.”
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, where seating is at least 7 feet apart, and patrons must spray down the surfaces in their zone after use (limit 20 minutes).”
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].
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.
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.
I have written previously about libraries’ shifting obligations under the ADA. 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 by the ADA?” If the answer is “no,” continue to Step 6.
If you have decided you must add some ADA-related language to your Safety Plan, you can do so by answering the following questions:
a. How does a person contact the library to request reasonable accommodations during a time of adjusted operations?
b. What reasonable accommodations can your library be ready to offer to the following common safety measure-related issues:
Some of the requested accommodations for the above issues will be simple. Can’t use hand sanitizer? We’ll provide water, a disposable towel, and soap. Can’t wear a mask? We don’t have a mask-free zone, but we’ll be happy to assist you over the phone and you can pick your books up curbside. Need extra help at the computer? We’ll figure it out, but our employees have been instructed to stay at least six feet apart unless behind a plexi window, and that is non-negotiable.
Some accommodations are harder. You’re allergic to the spray-down solution we bought in bulk? Sorry, we can’t buy a different gross of spray until next month; please let us know what ingredient bothers you and we’ll see if our procurement folks can find something different. Until then, we’ll be happy to assist you over the phone and you can pick your books up curbside. You have pre-existing conditions that mean you can’t go in a public area, even if there is a Safety Plan being enforced? We are so sorry to hear that. We miss you. We wish this whole thing was over. We are here for you by phone, e-mail, or the internet, and can work with a designated person who will pick up your books.
The key is to ensure that people know how to direct the requests, and that the library is ready to assess them promptly.
A good way to organize this is to create a section of the Safety Plan providing for signage stating: “For patrons needing disability accommodations while the library is operating under conditions to reduce the transmission of COVID-19, please call NAME at NUMBER, or write to EMAIL or ADDRESS. You will also find this information in our Safety Plan. The library is committed to safe access for all.”
Step 7: Feeling Confident
Okay, you have followed the six steps for assessing your Safety Plan and building out its provisions with regard to ADA. Do you feel confident in your approach? 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.
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.
 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.
 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.
 Bearing in mind that different libraries will have different requirements.
 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.
Public and Association libraries have questions about making policies creating conditions that must be met for library staff to return to work. Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?
I had initially considered bundling this question with another submission about temporary actions or policies during COVID-19. After all, both questions relate to policy, and a big goal of “Ask the Lawyer” is to provide legal information efficiently.
But after drafting that answer, and considering this question further, I did away with that notion. The member has isolated an incredibly critical concern about employee/employer safety and authority. It is a question that demands—and deserves—its own consideration.
But before we dive into the legalities, let's consider the practical implications of the member’s question. Why would an employer want to “exclude vulnerable employees” from the work site? On the flip side, why would an employer want to set policies “requiring” a class of employee termed “non-vulnerable” to return to work?
Near as I can figure, the employer would want to do this to promote safety; a laudable goal.
However, that is not precisely the approach an employer in New York State is empowered to take.
Under both the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law (“HRL”), employers are barred from discriminating against employees on the basis of real or perceived disability. This means that a NY employer who knows—or suspects—an employee might be particularly “vulnerable” (in this case, to COVID-19, but in other cases, due to pregnancy, or other medical conditions), is barred from simply labeling that employee “vulnerable” and taking steps to limit or change the terms of their employment on the basis of that conclusion.
Rather, disability law is set up to empower employees to identify their needs, and then—under the most confidential circumstances possible—work with their employer to receive reasonable accommodations in consideration of those needs.
For example, a person whose medical history means that they might be more vulnerable to COVID-19 would work with their medical provider to provide documentation setting forth the risks and requesting a reasonable accommodation on the basis of those risks.
Employers are always welcome to let employees know the ways in which they may request accommodations. For instance, as libraries, museums, and archives consider limited or full reopening, employers can transmit those plans to their employees, and invite them to submit any request for accommodations based on the anticipated additional exposure to on-site visitors.
Think of it in the same way your institution might think of planning a large event that would invite the maximum number of people possible to your library or a rented venue. When planning for an event that will attract a large number of people, almost every institution will consider the need to accommodate people who use mobility devices. They might not contact those people in advance, even if they know they're coming…rather, the event will be planned with those accommodations in mind.
A good example of this, of relevance to the current COVID-19 crisis, is an employee with a respiratory disability. As we know, people who have had respiratory illnesses in the past may be especially vulnerable to COVID-19 now. These are people who may request accommodations—potentially including the ability to work off-site—based on a disability (a good list of accommodations for respiratory issues can be found here, on the Job Accommodation Network).
So, with all that being said, the answer to the member’s questions (Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?) is: NOT AS SUCH.
Employers can most certainly, when otherwise allowed by law, policy, contract, and Executive Order, require employees to return to work. After that…
Once an employer is able/decides to re-open, in addition to any re-opening conditions, the employer must consider any requests for reasonable accommodations. This could absolutely include modifications for those whose disabilities render them vulnerable to COVID-19. The employer can even generally pre-plan to offer those modifications. Or they can make working from home, or working on-site, optional (if the work can, in the sole determination of the employer, still be done). But what they can’t do is pre-sort their employees by “vulnerability.”
There is one final critical point to make here, at this time (May 19, 2020).
Institutions re-opening as part of “NY Forward,” may be required to monitor the health of their employees in a way that typically would seem intrusive, and in some contexts, would even be illegal.
For example, here is a sample of the monitoring required under NY Forward, taken from a sample safety plan. NOTE: this is taken from the NYForward’s Phase One Retail Summary, and is provided as an example, only:
Employees who are sick should stay home or return home, if they become ill at work.
[Employers must] [i]mplement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors (but not customers), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.
Assessment responses must be reviewed every day and such review must be documented.
Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, employee may only return completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in past 14 days may only return to work after completing a 14-day quarantine.
As stated, this is the procedure for Phase 1 re-opening of limited retail operations. When will libraries subject to closure in NY be able to re-open under NY Forward, and under what terms? As I write this, the New York Library Association, NYLA, has this on their COVID-19 page, which states:
With input from our partners from the Public Library System Directors Organization (PULISDO), NYLA has been advocating for libraries to be permissively included in phase two. This would allow libraries to be a phased re-opening processed, to be determined at the local level, as early as when their region enters Phase Two. The decision on when, as well as the steps and procedures for re-opening, are best determined locally, and in conjunction with the local library system and county Department of Health.
This is a critical service to association and public libraries by NYLA, and every board and director should be monitoring this site for updates.
Of course, some libraries may have determined that the current workforce restrictions don’t apply to them at all (that they are exempt right along with school districts and local governments). And it is possible some libraries and museums, affiliated with larger institutions, will not be able to open until their region hits “Phase Four” (covering educational institutions). And it may be that by the point libraries are given the go-ahead, the emergency has abated to the point where monitoring of employees won’t be required.
But any library contemplating opening, in addition to being ready to consider ADA accommodations for those more vulnerable to COVID-19, needs to be considering these possible employee monitoring requirements, as well as the need to adopt any NY Forward-required Safety Plan, or similar documentation showing they are taking defined, affirmative steps to protect employee and public safety.
Public and association libraries developing the policies they need to re-open have a large, complex task before them. Thank you for a question that explores a critical consideration of that work.
 Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.
When publishing Oral Histories to a Digital Exhibit, such as Omeka, are we required by ADA to include a full transcription of the interview in the metadata? Is a Time Summary sufficient?
Not only is the answer to this “maybe,” but I am afraid the answer is actually “maybe maybe.” And it might even have to be “Maybe maybe maybe, maybe.” But hang in there, because I think I can still give you some solid information in reply! (Maybe.)
Oral history projects—exhibits and collections using audio and video recordings to tell a story in participants’ own words--provide invaluable access into the culture and experience of particular people, at a particular place, during a particular time. Using direct representation, with only the mediation of the recording, they can show emotion, capture dialect, and put a subject in control of their own story.
Hosting such stories online is a great way to bring unique perspectives and individual experiences to a broad audience who might not be able to access a physical museum. But as the member’s question points out, not everyone has equal access to audio or audio-visual online content. So what are the precise ADA obligations pertaining to an oral history exhibit’s audio components?
As the word “maybe” implies, there is no bright-line answer.
Libraries, museums and archives collecting and curating oral histories all have different obligations under the Americans with Disabilities Act. Some institutions will fall under the obligations governing government entities. Others will fall under the law and regulations governing places of public accommodation. Still others will have accessibility considerations arising from acceptance of federal grant money, or operation as an educational institution or health facility.
And finally, some institutions may develop an oral history exhibit along with a community partner, splitting duties regarding collection of stories, arrangement of information, construction of the on-line exhibit’s functionality and web presence, and ongoing hosting. And any one of those split or shared duties, regarding audio, could have implications for access under the ADA.
But while there is no bright-line answer, there is some great guidance out there on this topic, and if that guidance is followed as closely as possible, it will not only reduce the risk of an ADA violation, but perhaps also enhance an oral history exhibit.
To design an oral history project that will have a high likelihood of complying with the ADA, the project developers have to be thinking about access from the start. This means, before the project budget is fully allocated, before the contracts are awarded, before the online platform for a project is selected, or before any contributor terms are settled, access for those with a disability has to be considered up-front.
Fortunately, pre-planning and clear methodology are the hallmarks of all serious oral history projects. This is due to the great professionalism of those who are committed to this medium, who have developed an array of ethics, legal considerations, and guidelines for such projects.
Any member considering an oral history project should check out the excellent guidance at https://www.oralhistory.org/?s=ethical+guidelines (the statement of ethics developed by the Oral History Association) as well as their institution’s own ethics policies and guidelines. Any agreement with a collaborator or contributor should also reference the ethics/access criteria for both parties, as well as for a particular project.
For compliance with the ADA, what are those guidelines? There are any number of them, but I’ll go with what I consider the Gold Standard: The US Department of Justice, which investigates alleged violations of the ADA, guides web developers to the World Wide Web Consortium’s (“W3W”) Web Accessibility Initiative (WAI), which sets forth clearly developed standards for web content accessibility.
What does WAI say about the issue of audio content? A lot. Further, what the WAI has to say is so well-developed and nuanced—addressing just about every permutation you can think of (speaker reading from script, spontaneous speech with one person, spontaneous conversation, both audio-only, and audio-visual)—that the best thing I can do is send you to their guidelines:
As you’ll see in the “Standards,” just as the member suggests, sometimes a textual timeline might be sufficient. Other times, a transcript of the complete audio content should be available. And while this information can be part of the metadata, the manner in which the exhibit interacts with the user’s browser will be just as critical (for oral history exhibit developers who are actually developing the front end of an exhibit, here is what the USDOJ looks for : https://www.justice.gov/crt/web-page-accessibility-checklist1).
To use the member’s specific example, there may be times when simply a timeline of the information is sufficient. If, however, the way the person is describing the events, or the particular language or dialect they are using is part of the value of the exhibit, the content should be fully transcribed. The standards used to make that call should be part of the design of the project. For contributors sending an exhibit in to larger work, the host should be the one to set the criteria.
Now: I appreciate that not every oral history project, or every institution undertaking one, will have the budget or professional support to create W3W-informed access content. And while transcription gets easier and faster every day, not every project will have the capacity or need to use that, either.
Some oral history projects are very small. Some projects involve simply wanting to record different experiences of the people in a town, enjoying their Public Library, and put them on the library website. For those projects, the more modest resources and needs of the Town will govern the ADA obligations (unless there are strict conditions under grant money). But for larger projects connected to institutions that can be seen as having an obligation to provide such transcripts as part of a large oral project, particularly if public funding is involved, it is best to design the project to conform to agreed upon ethics, and W3W’s standards for Accessibility.
Again, this requires consideration at the front end of the project, and needs to be built into the budget and the procurement. It also needs to be built into any agreements for outside contributors (which the question hints at).
As the W3W guidelines point out, this will not only ensure the accessibility of your project, but will help people and institutions who do not speak the language of the person in the audio or audiovisual content to use your oral history project in their own research. The fact that this will also give you a better project is an incidental benefit of designing for inclusion!
Thanks for a great question.
 Through the magic of editing selective footage, an oral history project can also directly subvert these goals, but let’s assume anyone reading this is using their powers for good.
 Some would debate if this would be called an “oral history” project. Out in the field, I have encountered many uses of that term, and some of them are very informal, or minimally funded, so I am including that as an example.
Can a library prevent someone from coming into the library if they refuse to wear a mask? I know that library behavior policies would need to be broadened to include mask-wearing. Are libraries required to provide a mask for the public - and what if a person wears the mask improperly - can they be asked to leave?
New York has numerous “types” of libraries, serving a diverse array of locations. All of them are empowered to take the steps needed to serve their communities safely.
For libraries who want to do just that—knowing it will be a vital part of their community’s response and recovery—here is how to enact and enforce the use of appropriate personal protective equipment (PPE).
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)? 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.
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.
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 for that selection, I really like this function-centered guidance from OSHA:
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).
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.
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.
Until the board votes to revoke this temporary policy, only the following routine activities may be performed on site at the library:
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]
In the event any safety requirement is not practicable on the basis of a disability, please contact [Insert name] to explore a reasonable accommodation.
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).
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, 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. 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, 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; some people might need to use alternate PPE).
Thank you for a great question. I wish you safe operations as you serve your community.
 Whatever your library decides should be consistent with its analysis in any decision to apply for the Paycheck Protection Program, or other aid.
 Of course—especially as the mother of a Type1 diabetic and Gen Xer with parents almost 80— 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.
 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.
 Citation: 958 F2d 1242 [3d Cir 1992]
 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].
 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.
 I do run on, I know. Occupational hazard.
 Here is a good resource for ADA and COVID-19: https://askjan.org/blogs/jan/2020/03/the-ada-and-managing-reasonable-accommodation-requests-from-employees-with-disabilities-in-response-to-covid-19.cfm
What does ADA say about providing fragrance free bathrooms in public libraries? Our reasonable accommodation to a patron with fragrance sensitivity issues was to take the fragrance dispenser out of the public unisex bathroom. Are we in compliance?
It makes sense that “Ask the Lawyer” gets a lot of Americans with Disabilities Act (“ADA”) related questions. After all, both the ADA and libraries work to reduce barriers—barriers to information, barriers to education, and barriers to services/employment.
The issue of fragrance sensitivity and ADA compliance brings unique challenges.
For people living with this disability, the stakes are high: itching, burning, sneezing, rash, nausea, headache, and breathing problems can all result from exposure to even small amounts of fragrance in the air. And there is no reliable way to predict what precise product might carry the triggering chemical, scent, or compound.
To drill down into the member’s question, if the sole concern the patron has raised has been about access to the bathroom, then it may be that this sole adjustment was sufficient. However, I have found it is best to work through ADA accommodation issues from a broader perspective, by asking: within attainable, affordable and (thus) reasonable measures, are we doing all we can to reduce barriers to access?
In a bathroom, this could be limited to removing a scented air freshener, as the member has done. However, it could be that in addition to the air freshener, particular cleaning products, ambient scent entering the bathroom via the air ducts, and other fragrances (some of them on people) are invading the space and triggering the negative impacts. In that case, the key is to reduce all fragrances in the space (within the bounds of what is “reasonable”), perhaps by:
--all of which could be considered an accommodation under the ADA.
Not all of these accommodations, however, are automatically “reasonable.” Switching cleaning supplies could require a negotiation under the standing contract with a professional cleaner—or could be as easy as selecting fragrance-free products. A small library with an annual budget of $150,000.00 would find it too expensive to re-route the HVAC at a cost of $200,000.00—but perhaps could install a small window fan, drawing in fragrance-free air, for a much lower (and thus reasonable) cost. And the “reasonableness” a fragrance-free policy will depend on several factors, based on who it impacts.
A “fragrance-free” policy can be imposed upon employees after due consideration of overall working conditions, any union agreement, and related policies. However, a “fragrance free” policy for the visiting public poses broader difficulties. As just one concern: while most libraries will find it reasonable to address extreme hygiene issues that impact everyone (like visitors who may bring the pungent odor of fecal matter) through a “Patron Code of Conduct” to, a facility-wide “fragrance ban” could (ironically) impose limitations on library access.
This is where design—and well-crafted library-specific policy—can help out. Depending on the library, a climate-controlled area with separate HVAC or windows can be set aside as a “fragrance-free” area. A sign could say “This area is designated as fragrance-free. Please observe this restriction in consideration of fragrance-sensitive patrons.” For libraries considering updating their facilities, although not currently required by current (2010) “Standards for Accessible Design,” a room with adequate heating/ventilation/ac (“HVAC”) to achieve this separation is worth considering.
As someone who is addicted to Lush’s “Dirty” body spray (spearmint and tarragon, just the thing to spritz after a stressful day of lawyering), I realize it is easy to write about creating a scent-free space, and hard to navigate the human aspects of policing one. Further, as discussed, there is no one-size-fits-all approach. The bottom line for compliance is: within the limits of what is financially, operationally, and physically feasible at your library, consideration of a fragrance-free environment should be made. When the access under consideration is for a bathroom, access to the accommodating facility should be clearly designated, and a bar to fragrances should clearly apply to the space.
A great resource for starting this fragrance-free journey, including sample language for when considering a policy, is https://askjan.org/disabilities/Fragrance-Sensitivity.cfm?. As always, before using cookie-cutter language, it is best for a library to check its charter, bylaws, other policies, lease, and any union agreement before crafting their own, unique policy to meet the needs of their community.
I hope this answer passes your “sniff” test.
 Most librarians will know this is not a hypothetical concern.
 Lest you suspect ATL has been compromised: Stephanie A. Adams is not a LUSH ambassador and is not expecting, and will not accept, any compensation or in-kind contribution for this incidental plug. This stuff just smells fantastic.
Greetings. We have used an ASL Interpreting service a few times over the past few months and have had a situation occur twice where the patron cancelled their visit with our library 2 hours before the appointed time. The service we are using requires a 48 hour cancellation notice or else we get invoiced for full service. Is it legal to forward that charge on to the patron as they are the party who cancelled the service? If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?
This question has two parts, so I will re-state them for clarity:
Is it legal to forward that charge on to the patron as they are the party who cancelled the service?
If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?
For more on both of these, see below!
This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019.
“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.
[We’ll pause while you read “Screening Movies” and absorb the basics.]
Okay, have you got the fundamentals of ASL-related ADA compliance? Great! Now we’ll move to the advanced work required by these questions.
The answer to the member’s first question is “No,” because, per federal regulations:
(c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….
While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:
One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.
In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot.
There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.
1. Renegotiate your interpreter contract to shift away from cancellation fees
This of course requires cooperation by your ASL agency, but it is feasible.
One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what.
This gives both your library, and the provider, some fiscal stability as you serve the needs of your community. It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.
2. Renegotiate your contract to tighten the cancellation window and reduce the fee
24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!
3. Know your budget
As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution. What might be “reasonable” to a large urban library might be an “undue burden”  for a small village library with a much smaller budget. But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.
When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services. It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.
For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital.
The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required. And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.
 28 C.F.R. § 36.301 “Eligibility criteria.”
 A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.
 I don’t mean to imply that this member didn’t negotiate. In my experience, librarians are often tough and forward-thinking hagglers.
 Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –
This question has 2 parts:
1. Public Libraries often show movies/films under the auspices of a public viewing license. A question arose regarding ADA compliance: Does the film have to be shown with closed captioning? What if closed captioning is not an option.
2. When a program is given in a public library does a deaf interpreter have to be provided for every public program? OR is there a time-frame of notification - that is to say, if the library is notified an individual expecting to attend a program requires a deaf interpreter, one must be provide. What is considered an acceptable time-frame of notification? Should this be posted - if so where is it required: Website?
Thank you for your assistance in this matter.
This is an important submission, because access is the mission of every library, and access is the purpose of the ADA. When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.
Under that principle, the answers to the member’s questions are:
By planning for access, an institution can never go wrong under the ADA.
But the member wants to know: when planning for access, what does the law specifically require?
As always, what the law requires can depend on a lot of different factors.
The ADA and its enabling regulations do expressly require certain entities to use captioning technology. For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech.
But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters. Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”
In other words, while captioning is not expressly required at a library, accommodations are.
The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie. What’s important is not the precise accommodation, but the removal of a barrier to service.
That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access.
How can a library easily assess all those options? A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org. Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget.
For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services. To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.
Which brings us to the heart of the member’s question: what are a library’s specific obligations? At the start of this answer, I have used the lawyer’s go-to response: “it depends.” But what does it depend on?
Precise obligations under the ADA vary based on institution type, size and budget. For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure. This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.
On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.
But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult).
This is why every library should have a custom-tailored accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations). While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all.
For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event. Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully.
A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:
If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members, and an attorney, should be a top priority.
How can that play out? Let’s return to the member’s scenarios.
With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way. The library would check the latest alternate assistive technology in the early planning stages of the event. Consulting AskJAN, they might determine that perhaps remote CART technology can help, and their planned budget line would pay for it. If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.
If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages. But more critically, the details of the event will reduce the risk of such a complaint, since any person who needed accommodation had access that was both well-planned and easy to arrange.
Thank you for these important questions.
 An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm.
 This legal language “undue burden,” causes some of the most painful moments under the ADA. When a small, budget-challenged institution is forced to call a necessary accommodation a “burden,” no one feels good. Sometimes the law picks the wrong work; I would have gone with “unduly disproportionate.”
 Although seeking inspiration from similar institutions can be a great place to start, an ADA policy is not a document to cut-and paste from another institution.
 Page 62 of the 2018 “Library Trustees Handbook,” is a great resource for a library directors who need to give trustees an summary of the magnitude and importance of this issue.
 Communication Access Real-time Translation.