RAQs: Recently Asked Questions

Topic: Paid time-off for COVID-19 vaccinations - 01-21-2021
Are public or private libraries obligated to give paid time off for eligible employees to get the ...
Posted: Thursday, January 21, 2021 Permalink

MEMBER QUESTION

Are public or private libraries obligated to give paid time off for eligible employees to get the vaccine during work time? A staffer is planning to go upstate for it on a work day and the question came up if they have to use sick time or just "get the day" to take care of this. Thank you!

WNYLRC ATTORNEY'S RESPONSE

Non-governmental employers

Recent changes to the Labor Law make the "private" part of this question easy to answer: since all employers must now offer all employees sick leave (unpaid if the employer has under four employees, paid if five or more), an employee may use that sick leave for the purpose of obtaining medical care, including to get vaccinated.

If a non-government-agency employer would like to go one step further and not require an employee to use accrued sick leave, but instead, give them a day (or two half-days, for the vaccine that requires two shots) for the specific purpose of being vaccinated, that's fine, too, so long as the library considers vaccination of employees to be part of its Safety Plan (making the vaccination a work activity, and not a prohibited gratuity from a charitable entity to a private person).[1]  But there is no obligation to do so.

Small but critically important exception to this rule: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

Public libraries

Okay, this is where it gets tricky.  For public libraries that consider their employees to be employees of a "government agency," hang on one second, we'll address what you can do in the paragraph below.  For all other public libraries, who must follow the new sick leave law, the section above applies.

 

Public Libraries Who are "Government Agencies"

For public libraries whose employees are considered employees of their sponsoring municipalities,[2]  there is no obligation to "give" paid time out of the library to get vaccinated unless it is in a collective bargaining agreement or your government subdivision's response plan.  However, if your library is allotted vaccine as part of a rollout to public employers, and the entity you are getting it through (sponsoring municipality or school district) is encouraging vaccination by allowing it to be done on work time, that is an option to consider.  Further, if your library develops an employee vaccination rollout plan as an addendum to its Safety Plan[3] and would like to offer up to a certain number of hours of paid time out of the office to encourage vaccination, if part of a plan, that can be allowed (but is not required).[4]

Small but very important exception to this rule, just like with "private" libraries: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

For All

Issues like this a) affect mission and morale, b) relate deeply to employee and public safety, c) can impact a library's budget, and d) are fraught with compliance concerns, so any decision is best to tie to your library's Safety Plan,[5] and to have trustee approval (confirmed by a vote).

I continue to admire the care for others, tenacity, and attention to detail members of the library community bring to their questions as we get through this pandemic together.

 

 



[1] Just to be clear: to avoid a forbidden benefit to an individual, NO charitable entity should "give" a paid day off for vaccination without linking the enhanced safety of workers to its charitable operations (i.e., making it a part of their Safety Plan).

[2] Note: even when this is the case, the library's board of trustees, and only the board of trustees, determines who is hired, how they are compensated, and any matters related to development, discipline, and termination.

[3] This "Ask the Lawyer" addresses how to prioritize vaccine allotments and roll them out through policy: https://www.wnylrc.org/ask-the-lawyer/raqs/193.

[4] At least, it is not required as of 1/21/21.  As with all things COVID, check for updates on this.

[5] And be reviewed by a lawyer, whenever possible.

Tags: Association Libraries, COVID-19, COVID-19 Vaccine, Emergency Response, Municipal Libraries, PTO, Vacation, and Leave, Public Libraries, Safety Plan

Topic: Vaccine priorities for staff - 01/19/2021
The governor announced that the vaccine rollout to public employees would be through our unions an...
Posted: Tuesday, January 19, 2021 Permalink

MEMBER QUESTION

The governor announced that the vaccine rollout to public employees would be through our unions and health groups, but also said that WE need to prioritize who receives the vaccine first (based upon risk factors/comorbidities) since the supply is limited (as the governor mentioned in Friday's press conference) --it will probably take a few months to vaccinate every staff member who wants one.

How can we organize our internal "prioritization?"  Should we prioritize those with underlying health conditions, or use other criteria? What about HIPAA? I want to do this fairly, but I am also concerned about the ethics.

WNYLRC ATTORNEY'S RESPONSE

The member's caution shows how important it is to get this one right.

Before delving into it, I want to say: for public libraries with a union, this is one to confer with union leadership on. 

For public libraries without a union, it will be good to think about not only your internal prioritization, but the messaging around it. 

And for all libraries connecting their employees to vaccine, this is one to plan in careful coordination with a board committee, your lawyer, and your local health department.

With the right participants at the table[1] and careful consideration of ethics and privacy, finding the right plan for you won't be easy, but you will get it right.

This question is about the "ethics and privacy" part of the process. For a public institution that will be part of this rollout, the State of New York's own ethical statement and guidelines for prioritization are a good place to start.  Here they are:

New York State based its COVID-19 vaccine distribution and administration process on ten guiding principles.

  1. Safety: New York State will only endorse and distribute a COVID-19 vaccine if it is determined to be safe and will only be used according to the indication under which it received its authorization or license. This includes continued monitoring and reporting of adverse events after the vaccine is licensed and administered.
  2. Effectiveness: New York State will only endorse and distribute a COVID-19 vaccine if it is demonstrated to be appropriately effective in the populations intended for use.
  3. Expert approved: New York State will rely on the advice and counsel of recognized clinical experts and scientists to review and approve the safety and effectiveness of every vaccine that is authorized by the federal government for distribution.
  4. Equitable & clinically driven distribution: New York State’s COVID-19 vaccine distribution plan will be based on standards that prioritize people at higher risk of exposure, illness and/or poor outcome. Unrelated factors, such as wealth or status, will not influence distribution.
  5. Transparency: Throughout the COVID-19 crisis, the state’s daily public presentation of facts and reliance on science and medical expertise helped build public trust and confidence in government action. New York State will continue to be transparent regarding all aspects of the COVID-19 vaccine distribution, administration, and monitoring process to ensure New Yorkers are fully informed.
  6. Use of Data: Coordination of a successful vaccination program will require robust tracking, data and analytics capabilities. New York State will use powerful data and information technology platforms to guide all parts of the COVID-19 vaccine distribution and administration process to maximize safety, accuracy, and efficiency and meet all federal reporting requirements — all while maintaining patient privacy.
  7. Privacy and Patient Safety: New York State will ensure all vaccination processes prioritize patient safety, and all information systems guarantee patient privacy. Vaccination does not take away the importance of other public health measures that have served us well in the fight against COVID-19. New Yorkers will be urged to continue to practice social distancing, mask wearing, hand washing, and other measures.
  8. Partnership, Coordination & Public Outreach: New York State recognizes that coordination with local organizations and community providers is essential to the safe and successful distribution and administration of COVID-19 vaccines. The state’s outreach efforts will especially focus on reaching underserved, hard to reach, and vaccine-hesitant populations, as well as those at highest risk for COVID-19 infection and poor outcomes.
  9. State Leadership: New York State expects federal engagement on vaccine vetting, distribution, administration, and funding. However, regardless of the level of federal engagement, New York State will take all necessary steps and require local coordination with the state’s centralized approach to ensure an efficient and organized vaccine distribution.
  10. NEW YORK TOUGH: Throughout this COVID-19 crisis, New Yorkers have shown that there is nothing we cannot do if we work together as one community. Our approach to the COVID-19 vaccine will be tough, strong, united, disciplined, and loving.

 

Informed by these guiding principles, each library can consider its unique policies, Safety Plan, and if relevant, collective bargaining agreement (union contract), and confirm its own internal method of prioritizing.

While these variables will make each library's position unique, the best way to confirm and follow the method of prioritization they decide on is to:

            1) Adopt a written policy;

            2) Document that it is being followed consistently;

            3) Notify the employees and the public as to how the process will be implemented.

Here are an "example policy" and "example notice" drawn from the State's approach:

[**START EXAMPLE POLICY**]

[NAME] Library Vaccine Distribution Policy [Employees Only]

[**EXAMPLE ONLY**]

Policy

In step with the method of prioritization being applied by the State of New York, [NAME] Library's COVID-19 vaccine employee distribution plan will be based on "levels" that prioritize people at higher risk of exposure, illness and/or poor outcome.

Definitions and Levels

"Higher risk of illness and/or poor outcome" means that a medical condition makes it potentially more likely the employee could become ill, or, if they do become ill, are statistically more likely to experience a poor outcome; such need shall be considered "Level 1(d)." 

"Higher risk of exposure" means those who, working within the parameters of the Library's current safety plan, PPE requirements, and operations:

  • Perform any function or share any criteria required for vaccination during the New York Department of Health's Vaccine Distribution Phases 1a and 1b (including those 65 and older), but did not obtain the vaccine; such need shall be considered "Level 1(a/b)".
  • Must report to work on site and physically interact with the public as part of their routine job duties, and/or handle circulating materials; such need shall also be considered "Level 1".
  • Must report to work on site as part of their job duties; such need shall be considered "Level 2".
  • Performing all work duties 100% remotely; such need shall be considered "Level 3".

Procedure for 1(d) requests

Any Level 1(d) requests for vaccination shall be confidentialWhen supplies are available to the Library, employees who self-identify as at "higher risk of illness and/or poor outcome" may request COVID vaccination through the same confidential process used to request and arrange disability accommodations, with the understanding that during this time of extra burden on medical providers, documentation of the condition creating the need may be supplied after vaccination (please supply a note from your physician when you are able).

A request for vaccination may be considered separately or together with accommodations based on disability.


Procedure

Any employee may request vaccination. 

When supply and demand require prioritization, the order of priority shall be:

          Levels 1 (any type): highest priority

          Level 2 and with a member of their immediate household with higher risk of illness and/or poor outcome: second highest priority

          Level 2: third highest priority

          Level 3 and with a member of their immediate household with higher risk of illness and/or poor outcome: fourth highest priority

          Level 3: fifth highest priority

          All others: lowest level of priority

 

If further prioritization is required to prioritize between Level 1 employees, the order of priority shall be:

          Level 1 (a/b)

          Level 1(d)

          Level 1 (any type) and with a member of their immediate household with higher risk of illness and/or poor outcome

          Level 1

 

If an employee is selected for vaccination through the library, the employee will be expected to follow all the rules and procedures for vaccination. 

Employees not selected will be placed on a wait list in order of priority.[2]

The Director, or their designee, shall be responsible for compliance with this policy.

         [**END EXAMPLE POLICY**]

 

[**START EXAMPLE NOTICE**]

[NAME] Library Vaccine Opportunity Notice

[**EXAMPLE ONLY**]

DATE: [INSERT]

The Library has been issued # doses of COVID-19 vaccine.  We expect to be able to initiate vaccinations on DATE.

As determined by the attached policy, the Library will be offering vaccination through our allotment to as many employees as possible. 

Vaccination is voluntary.

Please transmit your interest in being vaccinated and your assessment as to the level of priority you fall into (see the policy) to name@address by DATE.

For example: "I am voluntarily requesting vaccination through the library's allotted doses.  I believe my priority level is "1."

Requests that include medical disclosures will be treated confidentially.

If the library is able to grant your request, we will send you information regarding next steps, and you will be expected to follow all the rules and procedures for vaccination.  Employees not selected will be placed on a wait list in order of priority. 

Supplies are limited.  If you have the opportunity to be vaccinated through another supplier, we encourage you to do so.  Employees may use up to a day of sick leave for each vaccination session.[3]  The library places the highest priority on the health of our employees.

[**END EXAMPLE NOTICE**]

 

Final notes from the lawyer:

These are early days for the vaccine and vaccination rollout.  While being prepared with a policy is the right move, prior to announcing any prioritization, after adopting a policy, be ready to be flexible, since the situation is changing rapidly. 

As with all major policies, this is one that ideally will be adopted via a vote by your board.[4] Here is a sample resolution for you:

BE IT RESOLVED, that after due consideration of the "guiding principles" of the State of New York and the library's own code of ethics, that the Library adopt the attached "Library Vaccine Distribution Policy" and "Notice;" and

BE IT FURTHER RESOLVED, that the [insert] committee shall work with the Director to monitor the need to revise this policy, based on any new guidance, knowledge, or operational needs.

 

I wish you good health, strength, and fortitude as we move into this next phase of overcoming the pandemic.

 



[1] This does not mean your library's (online) meetings about your rollout should have a cast of thousands—or even 5.  A good approach is like a series of waves: a small core group of policy makers (director and one or two board members) reach out to the identified parties to alert them and get initial input, set a time to check in on a final draft, set a tight deadline for final input and final approval by the board.  With the right planning, this can be done in 3-5 business days, and no one should be allowed to sandbag it.

[2] Care should be taken that any Level 1(d) designation is not set forth on a list that can be accessible per FOIL.  Once created, a wait list should simply set forth the names or employee ID numbers in order of priority.

[3] Drafting note: for libraries that must follow the new sick leave law (Labor Law Section 196-b, effective in September 2020), time off for vaccination does qualify as sick leave.  Libraries that regard themselves as being exempt government agencies, and thus not subject to 196-b, should check with their municipal attorney or HR professional to confirm if this meets the requirements for sick leave under municipal policies.

[4] While it is critical that a library board of trustees entrust the day-to-day management of the library to the director, policies are always ideally adopted at the level of highest accountability.  This will also position a board to have a director's back if there is a legal or operational challenge to the vaccine distribution policy.

 

Tags: COVID-19, Emergency Response, Health Management, Public Health, Public Libraries, COVID-19 Vaccine, HIPAA, PTO, Vacation, and Leave

Topic: NY's paid sick leave law - 11/05/2020
The state's new paid sick leave law recently went into effect on September 30th. According to ...
Posted: Thursday, November 5, 2020 Permalink

MEMBER QUESTION

The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:

"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."

As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law.  According to the state comptroller's table summary of local government entities [
https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".

However, in regards to page 33 of the State's Local Government handbook,

"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."

I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.

It's all a little confusing. Maybe you can help!

WNYLRC ATTORNEY'S RESPONSE

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not?  Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid.  So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply.  If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

 

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 [2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law."  And yes, it is subject to parts of the "Public Officers Law."  And yep—it may even have to disclose certain records under the Freedom of Information Law. 

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from.  Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

 

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees. 

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5],  c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"[6] otherwise barred by rules requiring mandatory overtime.  In short, under much of the Labor Law,[7] they are treated as municipal/district employees.[8]

 

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule.  But!  I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type

 

Hallmarks

Legal impact with regard to employees and labor law

What this means with regard to the new "Sick Leave" law ("196-b").

1. "Total Coupling" Type

The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.

 

Ideally, the relationship is confirmed in writing.

In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.

Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply. 

2. "Select support: determinative" Type

The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library  are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.

IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply. 

Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.

 

 

3. "Select support: non-determinative" Type

The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status.  For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance.  For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.

 

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

4. "Totally De-coupled" Type

The library has completely separated functions from any sponsoring entity.  The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.

 

No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.

In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

 

And there you have it.  From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way.  Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law.  If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is.  This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11]  Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to  Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question.  He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law.  Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question. 



[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of. 

[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."

[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee.  If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.

[4] Or school district.

[5] Worker's compensation, unemployment, paid family leave, etc.

[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime.  Only municipalities who are exempt from the Fair Labor Standards Act can do that.  For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/59.

[7] Except the Taylor Law.

[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.

[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave

[10] That said, this chart only considers the application of Labor Law 196-b.  If it tackled everything, it would be...very, very long.  For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.

[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.

[12] And another big thank-you for agreeing to be publicly thanked.

Tags: Employee Rights, Laws, Public Libraries, Sick Leave, FOIA/FOIL, Health Management, Public Health, Records Management, PTO, Vacation, and Leave

Topic: COVID-19 and part-time pay - 3/16/2020
Can libraries, using public money, pay part-time staff if they are either forced to close due to t...
Posted: Monday, March 16, 2020 Permalink

MEMBER QUESTION

Can libraries, using public money, pay part-time staff if they are either forced to close due to the COVID-19 or if the employee is forced to self-quarantine?

WNYLRC ATTORNEY'S RESPONSE

This is a very specific question, during a very specific, difficult time.  So before we delve into the answer, I want to be clear: every library dealing with the human resource considerations of a pandemic response should assemble the following, and be ready to draft a custom approach that takes into consideration:

  • Safety policies
  • Library bylaws
  • Emergency closure and compensation policies
  • Employee manual
  • Collection Bargaining Agreement(s) (if in place)
  • Insurance policy (the section to check specifically is the coverage for business interruption)
  • Up-to-the-minute declarations or advisories from relevant authorities and relationships (Center for Disease Control, congressional representatives, Governor, state representatives, County Health Department, Library System, local Civil Service contact, State Library Development rep, payroll service/entity handling payroll)
  • Employee Assistance Program (“EAP”) (if relevant)

After examining these resources, some libraries may find they already have “Emergency Closure,” “Quarantine Leave” and even “Pandemic Response” policies that address this question.  They might even find that their library’s EAP program will offer help to employees struggling to find childcare or eldercare.

Still other libraries may find that while they don’t have pandemic-specific policies, their policies for compensation during times of natural disasters or declared states of emergency will apply to this situation—including for part-timers.[1]

And finally, by examining the listed materials and working with the listed resources, a library can position itself to develop new, customized policies for safety (first!) and compensation continuity during a pandemic emergency.  Further, they will be able to coordinate their response with their system and emergency response efforts in their region.

So, with that said, below is the answer to the member’s question, which must be divided into two parts: compensation during emergency closure, and compensation during quarantine.

After that, I include commentary on the roots of the authority you’ll see in the answers.  And finally, I offer a sample policy and resolution for libraries that have no provisions for emergency closure pay and pandemic response, and want to proceed with maximum flexibility as they address this national crisis.

To the greatest extent possible, all of this should be done with the input of the library’s lawyer.

Compensation During Emergency Closure

NOTE:  Before taking any action, check to ensure your library’s collective bargaining agreement, if there is one, does not have a relevant provision regarding compensation during emergency closure.  This is critical.

A policy for compensation continuance during emergency closure is distinct from policies for paid leave (even though some libraries may already use their paid leave policies to address the ability to pay staff during an emergency).  Essentially, the library must identify if it 1) wishes to keep employees on call for their regular or reduced hours, even if the library is closed; and 2) what tasks those people can do, even if it is simply being “on call.

As the members question implies, a library’s provisions for this may vary based on the employment category of the employee (the variables might even go beyond the distinction of “part” and “full” time).

Here is a sample provision enabling this approach as part of an “Emergency Closure Policy” or “Pandemic Response Plan:”

Paid leave during emergency closure

When the library temporarily closes due to a declared state of emergency, and all or some employees are instructed not to come in to work, upon a vote of the board, compensation shall continue as follows:

[insert your library’s employee categories and method of compensation continuation; be careful to insert DURATION and any TIME/AMOUNT LIMIT of pay, and modes of calculation.  For example:

“Full-time staff shall be paid at their regular rate of pay.  Part-time staff shall be paid for their regularly scheduled shifts; for part-time staff with variable schedules, the weekly amount will be based on an average of the last three pay cycles, or as determined by the board.]

To be eligible for compensation during a time of emergency closure or reduced hours, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Because an emergency compensation continuance policy builds on employees’ ability to work remotely, a policy for remote work is a good companion piece to this type of policy.

Libraries should also bear in mind that injuries during remote work can be covered by Workers’ Compensation, and should ensure that any remote-work policy consider how the set up remote working as a safe experience.

Quarantine Leave

“Quarantine leave,” is paid time off during a time of quarantine (which can be imposed, or self-imposed), as a specific policy allows.

NOTE: “Quarantine leave,” is actually always available to state civil service employees.  In fact, at the onset of New York’s Covid-19 response, the Governor declared that all state civil service employees would be eligible for up to two weeks of quarantine leave,[2] regardless of classification, and as of this writing, nationwide coverage for certain private-sector employees is under development. CSEA, the union for public sector civil service workers (including library employees), is posting updates on this, as well, and libraries with CSEA bargaining units should stay attuned to that resource.[3]

How can publicly funded libraries implement Quarantine Leave?

NOTE:  Before taking any action, check to ensure your collective bargaining agreement, if you have one, does not have a relevant provision (chances are it will).

A good model for a “Quarantine Leave Policy” can be found in the state’s civil service law; below is a sample, with some additional language regarding part-time compensation:

If a full or part-time employee who is not personally ill is required to remain absent because of quarantine imposed by a governing authority, or if during a declared emergency an employee determines to self-quarantine and such employee presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence. Such pay shall cover the employee’s routine hours (part-time hours will be based on an average of the most recent three pay periods, or as set by the board).  Prior to return to duty, such employee may be required to submit a written statement, from the local health officer having jurisdiction, that return to duty will not jeopardize the health of other employees.

To be eligible for compensation during quarantine leave, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Like with all employment policy, this is not something to adopt without a thorough scan of the above-listed documents, to ensure your library has no contradicting bylaws, contracts, policies, or hire letters.

We just want to pay people during a hard time, what could the concerns be?

There are three primary things that can get in the way of simply committing to pay people through a state of emergency: a union contract with set terms regarding emergency pay, concern over “unconstitutional use of public funds”, and budget concerns.

Concern #1: Union contracts

As you’ll note from my many caveats and uses of bold in the sections above, paying attention to a union contract (if your library is a party to one), and working with your local bargaining unit as you craft your pandemic response is a high priority at this time.  A good union will be looking out for their members’ health and well-being—but will also be looking out for failure of the employer to adhere to the current contract.

What happens if your union contract states that part-timers will not get emergency pay for emergency closure or quarantine?  Unless something is changed, in writing, and agreed to with the bargaining unit, OR your library has a “reserve clause” clearly allowing changes in a time of emergency (don’t assume you do unless it has been reviewed and ok’d by your lawyer), your part-timers will not be getting paid.

Contracts with civil service employers in New York can be looked up here: https://perb.ny.gov/nys-perb-collective-bargaining-agreements-a/.  You can see many libraries, large and small, are listed.

I took a quick look and of the libraries I checked, different libraries have different emergency closure pay provisions.  So, what happens at the library over in the next county--even if they are in your system--might not be what can happen at yours.  This is a very careful thing to pay attention to, as it may affect employee well-being and morale.

That said, if leave with pay is barred by a CBA[4], and your board wants to address the issue of quarantine leave and compensation continuity, now is the time to contact your library’s lawyer, and head to the table (or, more properly during this time of sensible social distancing, a teleconference) with the head of your bargaining unit.

I imagine the head of the union will make the time; after all, this is all-hands-on-deck.

If your library isn’t in a collective bargaining agreement, while you have a lot of pressures hitting the current situation, this issue isn’t one of them.

Concern #2: Allegation of improper use of public funds

Article 8, §1 of the New York State Constitution states: “no county, city, town, village or school district shall give or loan any money or property to or in aid of any individual.”  The reach of this clause includes public libraries.[5]

Concern about this clause can be seen in the member’s question; from a certain point of view, paying staff (full or part-time) when they aren’t at the library doing their routine tasks could seem like a “gift.”  After all, the employee is not at work, and they are getting money.  Sounds like they are getting something for nothing, right?

Wrong.  When implemented with careful attention to detail, such emergency response policies are part of a legal and sensible compensation structure that enables something for something.  What is that “something?”  A stable, reliable work force anchored by a stable, reliable income, ready, willing and able to work during a time of emergency (just when people need libraries most).

But such policies cannot be improvised, half-baked, or under-documented.

Armed with the information that properly effected and documented compensation during emergency closure or quarantine is not a violation of state law, if a public library doesn’t have an emergency closure policy or quarantine policy, and they want implement them now, a good approach is to gather the resources listed at the top of this answer, assess any pre-standing obligations your library has, and then adopt or refine some policies.

Here is a sample board resolution for a library that confirms it has no agreements or policies to the contrary and desires to set up maximum flexibility during this state of emergency:

WHEREAS on March 7, 2020, the Governor of the State of New York issues Executive Order 202 declaring a state disaster emergency; and

WHEREAS, as a result of the world-wide pandemic underlying the state disaster emergency, the library may need to close, reduce hours, or reduce staff reporting for duty; and

WHEREAS, the board has duly reviewed the public safety and budget considerations of reducing operations and continuing regular pay during the state of emergency; and

WHEREAS, the board recognizes that to best serve its area of service and protect the health of the community and its employees, employees may need to be directed to report to work at the library, to work remotely, or to be on-call but not report to work during routine hours; and

WHEREAS, the library is a community resource for critical information at this time, and must remain ready to respond to community needs as is within its capacity and budget;

BE IT RESOLVED that the board adopts the attached policies on “Quarantine Leave” and “Paid Leave During Emergency Closure;” and

BE IT FURTHER RESOLVED that the board shall continue to compensate full and part-time staff as allowed by law and provided by the policy for Quarantine Leave and Paid Leave During Emergency Closure between [DATE] and [DATE]; and

BE IT FURTHER RESOLVED that the library director and the [Executive Committee] of the board shall maintain ongoing communication and monitor the best approach to address safety and operational concerns, and shall inform the full board of same; and

BE IT FURTHER RESOLVED that the board shall reconvene on [DATE] to reconsider the continuation of compensation in light of what may be needed for the community and the library to recover from the state of emergency and return to normal operations.

 

CODA: A Note on Authority

What laws create a public library board’s authority to craft emergency response policies?

This starts with the basics. Education Law §259 required all moneys received "from taxes and other public sources" in the name of a library to be kept in a separate fund.[6]  And regardless of who is “holding the money,”  “the ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board….” (1991 Opns St Comp No. 91-57, p 158) [emphasis added].

As the New York State Comptroller has stated repeatedly: public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131).

So even if a library’s sponsoring village, town, or city has a defined emergency closure policy that precludes paid time off for part-timers, the library can decide to adopt their own (that said, if the municipal policy is a good one, the library can choose to “borrow” it and go along for the ride…but should still specifically adopt the policy as its own).  As the Comptroller put it in opinion 1981 N.Y. 1981 N.Y. St. Comp. 485: “…it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees.”[7]

What reigns this in?  Compensation paid as part of any emergency closure or leave policy must be established, tracked, paid, and accounted for in a way that survives the scrutiny of an audit.  The terms must harmonize with the obligations of any relevant collective bargaining agreement.  And ideally, such an approach should bake in conditions to help the taxpayers see that compensated time out is in the best interests of the public.  That is not an easy array of requirements to meet.

But done right,[8] can emergency closure pay, or quarantine pay, for part-timers be “legal?”

Yes.

Author bio:  Stephanie Adams provides the “Ask the Lawyer” service to the library councils of New York.  For over 10 years she was in-house counsel for Niagara University, where she was (among other things) a member of the University’s pandemic response team.

 



[1] One elegant policy I found was simply “If the Library closes because of extreme weather conditions or emergency conditions, employees scheduled to work will be credited with time as if worked. Previous time off requests supercede any credited time.”  Go Geneva Public Library!

[4] “Collective Bargaining Agreement”

[5] It is the section that, along with many other things, bars libraries throwing extravagant parties for library volunteers.

[6] (1986 Opns St Comp No. 86-54, p 86),

[7] The Comptroller cited some more authority there: “see Opn No. 80-199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7)260).”

[8] “Done right” means: consistent with your library’s bylaws, collective bargaining agreement, and employee manual, with particular attention to consistent and compliant use of the full-time and part-time categories, and FLSA status.

Tags: Labor, Emergency Response, Employee Rights, Quarantine Leave, COVID-19, PTO, Vacation, and Leave

Topic: Time Off Benefit Policy - 10/16/2017
A member asks…[We] are switching to a Paid Time Off (PTO) model in 2018 and are looking for...
Posted: Tuesday, October 31, 2017 Permalink

MEMBER QUESTION

A member asks…[We] are switching to a Paid Time Off (PTO) model in 2018 and are looking for guidance on how to handle payout of the benefit when an employee terminates from employment. We would like to offer each employee their full yearly amount of PTO at the beginning of the calendar year (or start date of employment for new hires). However, we are concerned about the budget impact of having to pay out for every hour of PTO an employee has amassed in situations where employees terminate early in the year. As such, we are exploring a policy in where an employee receives all of their PTO hours at the beginning of the year and is free to use those days for time off. But if they terminate, they would only be paid out for a prorated amount of the PTO balance they have based on the number of hours they worked during the calendar year in which they terminated. Would such a system, if made clear in our Personnel Policy and not impacting any time accrued under a previous policy, be acceptable? Alternatively, would the Library be able to cap the amount of hours paid out upon termination to an amount we determine (35 hours/70 hours)? … Any feedback you could provide would be greatly appreciated. [Emphasis added] 

WNYLRC ATTORNEY'S RESPONSE

Libraries are service-intensive environments, which means they depend on their employees to report to work. However, since so much depends on staff, libraries are also wise to give their employees the tools for self-care and a proper work-life balance. A PTO policy is a great way to facilitate this.

What is “PTO?” Put simply, PTO is a finite amount of paid time off work (scheduled or unscheduled), to be used for vacation, short illnesses, “mental health days,” or whatever else is needed (note: often, bereavement is excluded). By not dividing time off into distinct types, PTO enhances employee privacy and flexibility—while decreasing the administrative burden of tracking the type of time.

The increasing use of PTO also makes sense as the ADA, the FMLA, and the upcoming New York Paid Family Leave Act have changed the landscape of medically-related time off.

Before we get to the heart of the member’s question, let’s start with some crucial basics. Under NY labor law, employers must have a written policy (or policies) governing sick leave, vacation, personal leave, and holidays.1 Under that law, as governed by the policy, the value of these “wage supplements” must be paid out at termination.

That said, conditions can be put on the terms of these “supplements”; according to the DOL the amount of time that can be cashed out “depends upon the terms of the vacation and/or resignation policy.”

This guidance is backed up by case law: New York courts2 have held that the required policies about PTO can specify that employees lose accrued benefits if such loss is a condition of the policy.

Among other things, conditions in PTO policies may cover the following:

  • How PTO accrues (annual, or more incremental);

  • How eligibility and earned amounts are governed (for instance, part-time vs. full-time, or based on years of service);

  • How much PTO can be paid out at termination;

  • If eligibility for payout survives termination for misconduct;

  • How “scheduled” and “unscheduled” (sick, emergency meeting, etc.) PTO is granted;

  • If a certain amount of reasonable notice before quitting is required to get the payout;

  • If a restriction on the number of employees using PTO at once is needed (this is critical for service-intensive environments like libraries).

In addition, any transitional/new policy can (and should) expressly address already accrued wage supplements (for instance, converting any unused vacation to PTO, or paying it out). As the member shows sensitivity to in their question, the new policy should never nullify wage supplements already accrued.

So, here we are, at the heart of the member’s question: can the amount of PTO cashed out at termination be pro-rated based on the time of year the resignation happens? The answer is: Once given, PTO should not be clawed back based on a variable factors, even those factors are set out in the policy. However, the solution is just as the member posits (and as is listed in the third bullet, above): uniformly capping the amount to be paid out, and applying it without fail.3

IMPORTANT CONSIDERATION

Of course, developing a PTO policy does not happen in a vacuum. Aside from the recruitment, retention, and employee wellness objectives, a library considering transitioning to PTO needs to consider:

  • The nature of the library (public, private, part of a larger entity, etc.);

  • The bylaws and role of any board policy or committee (for instance, if there is a personnel or HR committee, this topic would be of interest to them);

  • Any union contracts or other contractual obligations at play;

  • The full suite of employee benefit policies, and the recruitment, development, and employee retention and compliance goals they serve;

  • The budget impact of any changes.

Once a library arrives at draft policy, prior to it being enacted, a lawyer should review the policy to ensure it is compliant, and works well with related legal obligations, contracts, policies and procedures. Further, it is ideal if the policy is reviewed by the treasurer, and/or the person preparing the budget, and/or the person who files any tax forms on behalf of the entity. I’m no accountant, but I know PTO is logged in a specific way on balance sheets, and it can have an impact on financial statements.

So once you have your draft PTO policy, invite your lawyer, your treasurer, and your accountant (there’s a joke in there somewhere, I know), over for a quick cup of coffee, and make sure everyone says you’re ready to launch!


1 Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours.

2 [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).]

3 PTO can also be given on a more incremental basis, but this nullifies some of the flexibility benefits it can bring. That said, the policy should consider when an employee first qualifies, and if starting employees get a pro-rated amount based on their start date.

Tags: Management, Policy, PTO, Vacation, and Leave, Employee Rights

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