As part of a town bicentennial celebration, the committee wants to create a map of historic properties. There would be a description of the property noting its historic significance, the address, and ideally a photo. Many of the properties are privately owned. Do owners need to give permission for their property to be included? We would publish the address and describe the history of the property, but current owners' names would not be disclosed. We want to share history, but respect privacy. What legalities should we be aware of?
In addition to being something of a historic preservationist, I am also a design fan, and a booster for my adopted hometown of Buffalo NY. This means I am on several social media groups that discuss:
On these groups, there is regularly a debate about the legalities, ethics, and diplomacy of taking pictures, providing information, and commenting in a public forum about privately owned property.
Issues that are frequently raised include:
The issue can also take on tension if a person lives in a home they prefer to not have considered "historic," which can place added pressure and actual legal restrictions on the owner of the home.
On the flip side, many who proudly own "historic" or otherwise noteworthy properties glory in their building's appearance and history. These are people who not only want their structure listed in print and online resources, but carry a jump drive they can distribute easily to make sure the building is described properly.
When it comes to the risks of listing historic properties in a printed or online resource, there are very few direct legal issues. With the exception of certain high-security locations, it is not illegal in any way to publish information related to real property, its ownership, and its historic nature (or other significant factors). In fact, although not everybody realizes it, such information is generally available to the public in the form of tax maps, real property deeds, and other information housed by a county clerk.
That said, and in answer to the member's question, legal concerns can arise if a resident or owner can attribute negative consequences directly to the listing. For instance, if a listing suggests that a property is open to the public, when in fact it is not open, a property owner could have legal recourse. Similarly, if a write-up is directly connected to resulting harassment or vandalism, there could be an allegation of legal responsibility--although such allegations would not lead to liability unless a precise set of factors were present.
The stakes can also be higher when the listing is the result of a formal publication by an actual entity, such as a local library, historical society, religious corporation, or not-for-profit corporation. This is because such organizations typically have a larger platform to communicate from, and are also perceived as having "deep pockets," as well as insurance. They are also more vulnerable to public criticism, since they depend on public good will.
How can an organization mitigate such risk? Here are three steps:
Step 1. If your organization is going to publish a guide, check with the organization's insurance carrier to see if its insurance includes coverage for "advertising injury" and other claims related to publication. While not every "general liability policy" has this feature, it is a fairly common type of coverage, and any group that is regularly publishing brochures or pamphlets--or even listing information on its website--should consider getting coverage for allegations of defamation and copyright infringement.
2. Early in the initiative, decide what the precise criteria is for inclusion in your directory, and if your directory of local historic properties will have an "opt out" for people who don't wish their property to be listed or depicted.
3. Once the criteria and any option for "opt out" is determined, consider using a form to notify people of the directory, and to allow people to supply information about their property or to opt out. For instance:
[Info about your organization, upcoming event, pleasantries, etc.]
The NAME is preparing a directory of local historic properties, including your historic property at ADDRESS.
The criteria for the listing in the directory are INSERT. The listing will include the address, a photo taken from the street, and a brief history of the property. We will ensure there is no automobile with a legible license plate or people in the image.
To personalize this initiative and add depth to our information, we would like to provide you with an opportunity to send us information about the property, including any work you have done to steward it over the years, and any photos or legacy information you may have. You can send anything you like to INSERT ADDRESS. By sending information, you are giving the NAME a license to adapt it for use in the directory (both print and online), only.
In addition, because we appreciate that not everyone will want to supply information or have a picture of their property included in the directory, we are providing an "opt out" of the photo depiction. If you do not want a photo of your property included in the directory, please check the box below:
Please do NOT include a photo of my property at ________________ in the directory. I understand this "opt out" is a courtesy and information regarding my property is part of the public record.
The directory text will be finalized by DATE and we anticipate publication by DATE. Therefore, to be able to include your materials or remove a photo, we appreciate your reply by DATE.
[nice things, etc.]
If at all possible, the organization's attorney should review the final letter before it goes out, which will allow the organization to address any concerns specific to the project or the particular locality.
Thank you for submitting an interesting and sensitive question. Respect for those who steward historic structures is important...as is celebrating the legacy they preserve.
 Woe betide your guide if a "coppice" is mistakenly called a "cornice."
 I have never heard of a directory of historic properties being used to "dox" (harass via release of private information) somebody, but I can imagine it happening.
 For example, if the write up said "This is the historic Bailey mansion. Legend has it if you throw a rock through a window, your wish comes true. Bring a rock and have at it!"
 As in, money to pay for damages.
 Is it on the state registry, federal registry, or considered "historic" due to a local designation? Or are the criteria simply that the structure was built before a certain year, hosted a significant event, or was once owned by a noteworthy person?
My hometown library has implemented a fitness waiver for their movement and exercise activity programs. I am wondering if this is a good idea for my library. We provide some exercise classes including chair yoga, Zumba, nature walks, and are looking into another movement class activity. For reference, please copy and paste the form used by my hometown library [redacted for anonymity] into your browser or refer to the attached screenshot. Are we within our legal/ethical practices to implement such a waiver? Will we need to consult an attorney to draw up the waiver for a fee, or can we borrow the language used by [redacted for anonymity]? Thank you.
I have a lot of fun-loving clients. Here are some examples of activities I've created liability waivers for:
I have also worked on liability waivers for more commonplace activities like attending a hockey game, horseback riding, and cheerleading.
The purpose of a liability waiver is to limit a person's ability to bring legal action for injuries related to a particular activity. Therefore, the trick to creating a successful waiver is making sure it is enforceable when a worst-case scenario--an injury related to that particular activity--occurs.
Because of the high stakes--and because the law in New York can have an impact on how much liability can be waived (for instance, a waiver of liability at certain types of pools is invalid, no matter how well-written) -- a waiver should almost always be custom-crafted to the actual activity, at a specific place, and thus not borrowed from another entity.
The waiver for the mechanical bull rider was different from the waiver for the hockey spectator.
The waver for the person venting their rage on a car for charity was different from the waiver for an equestrian.
The waiver for the sword fighter actually had more in common with the waiver for the cheerleader than you might think...but was still different.
Add to this diversity the fact that in New York, the waiver for a municipal library might have to look different from one used by another municipal library, or an association library, and there are a lot of variables to consider.
So, my answer to the question "Will we need to consult an attorney to draw up the waiver for a fee?" is: if your library wants assurance that the waiver actually protects the library from liability, then YES.
But wait, there's more.
I appreciate that for a not-for-profit such as a library, which likely doesn't have a budget to go around hiring lawyers to hand-craft waivers for every separate fitness activity (or if it does, would rather spend that money on materials and programming), bringing in a lawyer every time you want to sponsor a new physical fitness event can be cost-prohibitive.
So here are a few options between commissioning a new waiver for every fitness event, and just scrapping such events in the first place.
Solution 1: Pass the risk of liability on to the instructor
Any physical fitness class being offered by a library should be led by an instructor with the documented qualifications and insurance coverage to limit and cover the risk of injury related to the activity.
For a yoga class, this means the instructor should be able to show they 1) are certified by an acknowledged yoga authority; 2) are willing to accept responsibility for injury caused by their yoga class, and 3) have insurance that will cover such injury (whether the person sues the instructor, or the library, or both).
A contract showing all this will 1) recite the instructor's qualifications; 2) list their insurance (and attach a certificate showing the coverage; and 3) include a "hold harmless" and "indemnification." That means that if there is a claim of liability resulting from the classes, the instructor's insurance coverage will take the heat.
Such an instructor will, usually, have their own waiver that they require participants to sign, tailored to the precise activity. Further, to most experienced instructors, none of this will be an outlandish requirement.
Does this mean that start-ups and amateur instructors might not be able to offer classes at your library? Yes...and while it may seem harsh, that is a good thing. If a person is great at yoga and loves sharing what they've learned, but doesn't have the documented credentials to assure the library that they know how to teach it, or insurance coverage, they should not be selected to offer a fitness class by your library.
The public attending a fitness class will trust that the library has picked the right person; having the ability to demonstrate a bona fide qualification and insurance is a key sign you've made the right selection.
Solution 2: Work with your insurance carrier
Your library likely has some form of general premises liability coverage. This means that an insurance carrier, on an annual basis, is sending your library a copy of an insurance policy--and the library is paying for it.
Aside from your board and employees, you know who doesn't want your library to get sued for an injury that happens during a fitness activity? Your insurance carrier.
Now, what I am about to write may, or may not, be helpful. In my experience, some insurance carriers will bend over backwards to make sure their "insured" doesn't get sued; they will offer training on risk management, they will offer employee screenings, and they will offer to review forms and policies. Other carriers, on the other hand, will just accept a check for your library's annual premium, and wish you "good luck" with liability.
When your library is contemplating any physical event with a moderate risk (yes, like Zumba), it is a good idea to check in with the insurance carrier for the library. Do they have waivers they want you to use (even if your instructor has held you harmless)? Do they have rules they require you to post (even if the rules are pretty obvious)? Is there an exception in your coverage (does it not cover fitness classes at all)? All of this is critical to know before your library takes on any risk for a program.
And who knows...I've actually had clients get the "all clear" from insurance carriers, who confirm "Yes, that is within the scope of your coverage, let the Zumba commence!" It all depends on what's in the policy.
Solution 3: "One-Waiver-Fits-Most"
With a "one-waiver-fits-most" solution, an organization identifies a suite of low-risk activities, and asks that their lawyer write "one waiver to rule them all," and only offer that type of activity...saving costly custom waivers for riskier (and likely rarer) activities.
What is "low risk" activity? That is up to your lawyer, insurance carrier, and library. But it in general a "low-risk" activity is one so low-key and mundane, with no heightened or specific risk, that an enforceable waiver covering it wouldn't require any special bells and whistles.
Common examples of such "low risk" activities might include:
Although they might seem low-risk, I would generally exclude from this list:
THESE ARE JUST EXAMPLES...each library's list of "low risk" activities to be conducted with a "one-size-fits-most" waiver will change based on the library's type, level of insurance, and tolerance for risk.
While not perfect, the "one-size-fits-most" solution is a cost-effective way to confidently offer programs from a menu of activities, while also protecting the library and not blowing the budget on legal services.
To ask a lawyer to write a "one-size-fits-all" waiver for your library, gather:
Be ready to meet for maybe half an hour with the lawyer to discuss the fitness events that your library wants to host. For municipal libraries, be ready to involve the town/village/city attorney at either the beginning, or the end, since depending on building ownership, and some other factors, the municipality may need to have some input on this too.
Mix that all together, and you should get:
 Cheerleading may be common, but it is fraught with risk! P.S. NCAA: it should be considered a sport.
 New York Consolidated Laws, General Obligations Law - GOB § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
 In my work with libraries, I have found this is not always the case. One important annual task for trustees is to ensure that the library has adequate insurance.
 In writing. Always confirm legal advice in writing.
 An example of a "bell and whistle" would be the specific warning: "horseback riding is inherently dangerous")
 Unless played the way my family plays, in which case, there is not enough insurance in the WORLD.
 Although I am willing to bet croquette is on the "low-risk" list state-wide.
 Yes, they can be signed and/or archived electronically, but confirm the method with the drafting attorney.
Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed. The question is, if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?
There is no one right answer to this question, but there is a formula for any library to come up with its own, unique answer.
Here is the formula:
[Situation] x [Ethics + Law] / [POLICY/Precedent] = YES or NO
Let me break this approach down. And trust me, I will give a clear reply to the member's question at the end of all this.
The formula starts with the situation. In the scenario we have here:
"Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed."
There is a lot that can be said about this description, but one important aspect of it is the library's care to not reach a conclusion about why the teens were at the library instead of school (while the member describes an "assumption," there is no action on that assumption). And as noted, law enforcement was not called; rather they "walked through...with no explanation."
This situation is then multiplied by the combined factor of ethics and law. Both the ALA and NYLA Codes of ethics emphasize patron confidentiality. Meanwhile, New York's Civil Practice Law and Rules ("CPLR") Section 4509, the state law requiring a subpoena or judicial order before a user's library records can be shared without that patron's consent, does not define "library records" other than to state that they include "personally identifying details." This is why whatever the situation, ethics, and law are, the answer must be assessed under a library's policy governing patron records (while considering past applications of the policy, to ensure consistent application).
It is at this last factor--policy--where things can get complicated. With the advent of (sorta) new technologies, the definition of "library records" is not just internet searches and checked-out materials. It could be what a person printed on a 3D printer, or their image on a surveillance camera, or their use of library wi-fi. None of these things, right now, are listed in CPLR 4509, but many library professionals would consider them to be library records.
The trick is making sure that when a library takes a position about library records (especially with regard to records that, at first glance, are not about library services, but more about security), it is supported by their policy.
Okay, I know I promised a "clear answer". So let's re-state the question: "if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?"
Based on a fictitious library consulting a fictitious lawyer, here is one possible answer:
To the ABC Library:
You have requested legal advice regarding whether a library may provide a substantive answer in response to law enforcement enquiring about the presence of a patron in the library.
Your concern is that such a disclosure, based on the visual observations of library employees rather than written/recorded records, could still be considered a violation of patron privacy. You confirmed that at the time of the inquiry, the library had no operational need to release any such information.
I have reviewed the library's policy on patron confidentiality, and based on the below clause, I advise to not release such information unless there is a subpoena or judicial order:
"Consistent with the ALA and NYLA Codes of Ethics, the ABC library considers any record or information that indicates an individual's use of library services and/or facilities to be a library record under CPLR 4509, unless specifically excluded by this policy."
Therefore, I advise not providing such information without a subpoena or judicial order, unless the requestor accurately points out that a specific law requires it.
Thank you for trusting me with this question.
Very truly yours,
A. Hypothetical Lawyer, Esq.
Of course, as the "formula" at the start of this answer points out, the "situation" may vary from time to time. And CPLR 4509 does leave room for mandatory disclosure "when otherwise required by statute."  Those are the times when a library may want to consult a local attorney to obtain quick advice in the moment.
Since this formulaic balancing of facts, ethics, legal obligations, and policy can be difficult to keep in mind, it may be helpful to summarize it to library trustees, employees, and volunteers this way: “A patron's use of the library and our services are confidential. If anyone asks about a patron using or being at the library, our standard reply is 'Since patron information is confidential, I need to refer you to [the Director].’”
Thanks for a very thought-provoking question.
 As of November 12, 2021, here is the text of CPLR 4509: "Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute."
 What are examples of things to exclude? If a library is in shared space with a shared security surveillance system, that should be excluded (unless the library has confirmed via written contract that the footage of the library will only be reviewed per the policy). If the library has a snack bar or gift shop and wants to monitor the point of sale for theft, that could be excluded. Security footage of a community room used by third-party groups (not individuals) under a space rental agreement is another possible example.
 Even lawyers need to look this stuff up sometimes. Just like I don't have some of the finer points of the Domestic Relations Law at my fingertips, not all lawyers can recite the requirements of CPLR 4509.
 Or designated positions with regular training and/or adequate experience to appreciate the fine points of the library's policy.
We have a school district public library board considering requiring background checks for new employees. They are concerned that they may be legally required to background check all current employees. Would there be any legal reason they would need to do so?
[NOTE: for background to this short answer, please see the much longer "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/205, that addresses the tightrope walk/legal minefields of employee background checks.]
So, does a school district public library implementing a background check for new employees have to also check their current ones?
The answer is: no; barring an over-ruling requirement (such as a term in a union contract) a library board can implement a background check policy for all hires going forward, without imposing a "retroactive check" requirement for current employees.
However, I would never advise that approach. Here are three reasons why:
1. Possible discrimination
A policy to only check the backgrounds of "new" employees could have a disproportionate impact on candidates on the basis of age, or gender, or race (to name a few). By not checking everyone, an employer risks the appearance of (or actual occurrence of) illegal discrimination.
2. Possible liability
Employee background check policies are implemented to reduce risk. If an employer is using employee background checks to reduce risk, there should be a very good reason for not checking all employees (such as a union contract that bars it), or the employer risks a claim of negligence.
3. Worker relations
A work environment should be a place of high trust. By subjecting one class of employees ("new" employees) to heightened scrutiny, in addition to the possible concern mentioned above in "1," it creates an unbalanced environment for trust. This is bad for morale.
I appreciate that background checks can come with a cost, so minimizing their frequency is helpful. I encourage any library implementing such a policy to check with their "Directors & Officers Insurance" carrier, since sometimes, carriers offer resources to defray and even pick up the costs of the check.
Thank you for a thoughtful question.
 Of course, if a school district public library is in a school (not a common scenario; school district public libraries are largely autonomous and separate from school district property), and if the librarians are on the payroll of the district, then they are already being background checked and fingerprinted, per the chart here: http://www.nysed.gov/educator-integrity/who-must-be-fingerprinted-charts. Of course, this question pre-supposes that the board is setting the hiring policy, which means the library is autonomous.
 Just to be clear, a contractual obligation to not conduct criminal background checks should never be in a collective bargaining agreement! However, some reasonable restrictions on the scope of such a check would be consistent with NY law and policy.
Kids have been playing in our parking lot and my board is concerned that they will hurt themselves and we will be liable. We have a very vague policy about our parking lot being for patrons to park at only and a couple signs that say patron parking only. We can update our policy to be more specific if need be but their thoughts are no policy on our end will protect us if someone gets hurt and says they didn't know our policy so we need a sign posted that makes it clear we don't expect kids to be riding bikes, go carts, etc in our parking lot.
Our treasurer thought maybe just a "no trespassing" sign would work.
Another Library Director I know said they have a sign that reads:
On Library Property"
Would something more specific like that be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?
The kids are often waiting until the library is closed and I'm no longer there before they start riding around on it so simply being vigilant telling them to leave is not going to work.
Thanks so much for any guidance you can offer.
Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action. Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.
As a lawyer who studies how the law impacts what people do--and how we do it--I find skateboarding fascinating. Since at least the late 80's, in town meeting after town meeting, legal case after legal case, site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).
That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury. It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.
Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.
For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum. The mission of your institution is to be accessible, inclusive, and to serve your community. Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds).
How can an institution achieve this balance?
For an institution confronted by this issue, there is a five-step process that must be conducted:
STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds. Does your library own the lot, or is it rented and subject to the terms of a lease? What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).
STEP TWO: What insurance covers the lot, and what types of incidents are covered? This step will provide insight into how your institution is set up to manage the risks you've identified.
STEP THREE: What is the purpose of the parking lot and grounds? What functions do those resources serve? Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library. However, in the case of a lease or shared premises, that might not be the case.
STEP FOUR: Confirm and harmonize everything from the first three steps.
This fourth step sounds simple, but it can take many forms.
NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.
STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.
Why these steps? Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations. For instance:
In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.
For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:
"Our parking lot is for the safety and convenience of
our Library's diverse and wonderful community.
Please limit your use of our lot to parking your bike or car
while using the services of the library."
Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:
"Parking lot use limited to parking for
library patrons, employees, and vendors.
Which brings me to the member's actual question:
"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"
As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache.
In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:
"This parking lot is for parking only.
No recreational use allowed at any time."
And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.
We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.
If that is true, what is the purpose of the signage?
The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).
Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.
Why? If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability. To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).
This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.
In closing, I have to say: writing effective property signage is a tricky thing. Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource. Here is a model to consider (after your library follows all the steps):
"To promote a safe and welcoming environment,
this parking lot is for parking and library-approved events only.
All other uses must be approved in writing by the library.
To inquire about using our lot for a community event, call ###-###-####."
...with shorter, smaller, punchier signs at key areas to reinforce the core message:
"No playing in our parking lot at any time.
I wish all libraries reading this a reduced-risk, injury-free parking lot.
 In the field.
 I had a board in the 80's, but I only ever attained the level of skill shown in Tom Petty's "Free Fallin'" video (which is to say: not very much).
 And maybe earlier?
 I like this one: People v Smith, 160 Misc 2d 1070 [Just Ct 1993]
 I am not going to cite a study here. Rather, I will cite NY Insurance regulation 11 NYCRR 27.3, which includes in a list of specially elevated risks: "Asbestos, Fungi and Water Damage Remediation ... Amusement Parks and Carnivals Property...Amusement Rides and Devices ...including bumper cars, go-carts and go-cart tracks, giant slides, skateboard tracks, roller-blade tracks...."
When you want to know if something is statistically risky, ask an insurance carrier.
 These measures are also used to "dissuade" people from sleeping and getting comfortable in public spaces, an overlap worth contemplating.
 A skateboarder or roller-blader on a sidewalk or in a parking lot can pose a risk to a person walking with a small child or stroller, using a walker or wheelchair, or walking an animal.
 Although the question was confined to the "parking lot" I am adding "and grounds" since this issue doesn't just involve parking lot concerns.
 BMX bikes, skateboards, and roller-blades take the brunt of this type of issue, but frankly, does your director want to quibble over policy when a group of rogue folk-dancers hosts an event in the parking lot after-hours?
 I like this last bullet because it reserves the right of a library to host a planned recreational event, but to otherwise bar them on the property. Further, by avoiding the term "loitering," it reduces the risk of confusion for those who need to park or sit on the grounds after-hours to use a library's 24/7 free Wi-Fi.
 If you go with this one, confirm with your local PD that they will do this in a way that is consistent with the mission and role of the library. NOTE: I appreciate that in some places, this will not be viewed as a viable option. The mission of your library should be the guiding factor in deciding whether or not to involve law enforcement or private security in this type of policy.
 Whenever possible, it is good to use a licensed architect or credentialed municipal planner to design signage; they will pay attention to things like reflectivity, placement, font choice, and ADA accessibility.
My questions involve background checks for potential new employees, fingerprinting, developing policies, procedures, and best practices.
Do background checks, fingerprinting, etc., need to be done for all positions? Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants? Can the background check need to include a financial check and a legal check?
And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well.
This...is a big question. It's only three short paragraphs. But it's BIG.
It's "BIG" because the risks of getting this topic wrong are immense--from not only the obvious risks involving legal concerns, but risks involving ethics, privacy, and the goal at the heart of the issue: safety.
It's also BIG because the phrase "background check" is not tied to a precise or static definition. When someone says "background check" in the context of employment, here are just a few of the things it could mean:
Each of these "checks" comes with a wide array of legal requirements--or typical legal cautions--governing its use.
For all types of checks, the institution using them should have a clear policy governing what jobs require them, and how such records are evaluated, maintained, and disposed of.
And finally: when developing, implementing, and routinely using any type of background check policy, an organization is wise to take care that it is not incorporating factors that can be shown to disproportionately negatively impact (i.e., discriminate against) a particular category of applicant.
Okay, with all that off my chest, let's answer the actual questions.
Do background checks, fingerprinting, etc., need to be done for all positions?
The degree to which background checks and documentation of identity must be performed are governed by two things: what is legally required, and what the risk management practices of an institution dictate.
These two factors mean that practices will vary from place-to-place. A librarian working within a public school district in the state of New York will be subject to a criminal background check and must be fingerprinted just as any other regular employee within their district. A librarian at a public or association library is not required by law to have a criminal background check, nor to be fingerprinted, but an institution could decide, for risk management purposes, that a position requires that level of scrutiny for safety and security.
Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants?
There is no requirement in the law that a job advertisement has to disclose a background check in the job advertisement. However, prior to obtaining and using any information from a third party whose business it is to provide background information, an employer must notify an applicant; this notice must be in writing and in a stand-alone format. Further, before a negative decision is made based on such information, it must be disclosed to the applicant. A good resource on this is the Federal Trade Commission, but the third party provider, if they are a true professional, will provide the forms for each of these steps.
Now all that being said, it may be that some local hiring procedures or collective bargaining agreements require the disclosure of background checks in a job notice. Further, some employers may want to disclose their intent to use a background check to avoid surprising candidates further into the process. There is no bar to making such an early disclosure, but if given, such notices should be carefully drafted to avoid implying that those with arrests or criminal convictions will not be considered for the position.
Can the background check need to include a financial check and a legal check?
Yes, absolutely. A background check can include a credit check, a search for liens and other debt instruments, a review of criminal history, a consideration of driving record, and any combination of the items I listed at the top of this reply. Just be careful: if your library or system relies on a third party to supply that information, it must follow the guidance from the Federal Trade Commission (see that link in footnote 6).
Okay, at this point, I have to re-emphasize: before using any type of check, a library should have a policy covering that type of check, and that policy should cover all check-specific legal compliance, as well as: when the check is conducted, how it is conducted, how the information is used, and how the documents related to it are disposed of/retained. 
When developing such a policy, a good rule of thumb for an institution considering any type of background check is to be able to clearly answer the question: "Why are we doing this check?" While the reasons will vary, the answer should always relate to the essential functions listed in the job description, and the nature of your library.
For instance: if a position will create opportunities for a person to spend unsupervised time with vulnerable populations, a criminal background check and rigorous prior employer check is wise. If a position requires a particular credential, verification of that credential makes sense. And if you are hiring someone who will frequently have to drive the bookmobile, a motor vehicle records check is almost always imperative.
On the flip side: if a person is being hired for a job that doesn't require driving, a "current driver's license" should not be required. If a person will never have access to financial information or fiscal resources, a credit check is likely not necessary. And if a would-be library clerk has a DWI that is 20 years old--and no other criminal history--it is likely the conviction is not a basis to eliminate them from consideration.
Last question (and it's another biggie):
And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well?
"Mandated reporters" is a legal term under Section 413 of the NY Social Services Law. Professionals listed in that section are required to make a report when they:
"...have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, [OR] when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."
I have placed a list of the "Mandated Reporters" set by Section 413 below this answer. As you can see by reviewing the (long) list, library employees (unless their function also fits into one of the categories listed in 413) are NOT Mandated Reporters.
Of course, a library--or an institution that hosts a library--can decide and enforce via policy that its employees have an affirmative duty to report observed or suspected child abuse (or any abuse) that occurs on their property or in their programs. Many insurance carriers actually require their insureds to have such a policy.
[NOTE: If an employer has any type of "report abuse" policy, employees should be trained on how to make such reports no less than annually. The average person can have a trauma response to witnessing abuse, which can impact their ability to report it, as well as negatively affect their well-being. Routine training on how to recognize and report concerns, and experienced support for reporters, can help with this.]
Thank you for an important series of questions.
List of "Mandated Reporters" under Section 413 of the Social Services Law (also called "human services professionals"):
...any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; employee of a publicly-funded emergency shelter for families with children; director of a children’s overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility for children that is licensed, certified or operated by the office of children and family services; or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons credentialed by the office of alcoholism and substance abuse services; employees, who are expected to have regular and substantial contact with children, of a health home or health home care management agency contracting with a health home as designated by the department of health and authorized under section three hundred sixty-five-l of this chapter or such employees who provide home and community based services under a demonstration program pursuant to section eleven hundred fifteen of the federal social security act who are expected to have regular and substantial contact with children; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.
 This is why the phrase "Must have no criminal history" or the like must not be included on a job notice. For more information on this, visit https://dhr.ny.gov/protections-people-arrest-and-conviction-records.
 More info on this further into the answer.
 For some employers, this criteria is set by the provider of the organizations’ automobile and/or general liability insurance; this is especially true for organizations that use "company" vehicles.
 Unless there is a very obscure local law I have been unable to find. If you are aware of one, please email me at firstname.lastname@example.org.
 More information on how/when to give this notice is here: https://www.ftc.gov/tips-advice/business-center/guidance/background-checks-what-employers-need-know.
 Or other categories protected by law.
 That's right: I put that in italics, bold, and underlined it! An "Ask the Lawyer" first. No organization should ever "wing" a background check--of any kind. There is too much at stake.
 I know, there is a lot of room for interpretation in this language; when in doubt, seek guidance.
 I think of this as the "Penn State Victims Requirement."
 18 NYCRR § 433.2
We are a private association library. There is a "difficult" patron who sits on a bench (almost everyday doing nothing but trying to talk to anyone nearby) which is immediately next to our front doors on library property. We are doing curbside pick-up so the staff places the library items immediately outside the front doors on a table. The patrons come to the table to pick them up. The "difficult" patron refuses to wear a mask no matter who asks and how many times he is asked. We recently found out that he was exposed to someone who has COVID. The police tried to offer a mask to this patron and he still refused. We were told to call the police if he returns. When he did, the police never came. This patron is a health hazard to the staff and our patrons. What else can we do?
***THIS ANSWER IS NOT FOR PUBLIC LIBRARIES***
Here is what else you can do:
A library’s pandemic Safety Plan is not set in stone; it should be a living document that evolves as the library’s operations and our overall knowledge about COVID transmission change.
With that in mind, revising its Safety Plan to ensure the physical layout of its curbside operations could be a good solution to this member’s situation.
Here are some possible revisions to accomplish this:
NOTE: As with any adoption or revision of a Safety Plan, to the greatest extent possible, check in with your local Department of Health (I appreciate that in some places, the Department of Health may be so overwhelmed that this "check-in" is impossible).
Since it is best to have your library board "on board" with the library's Safety Plan, and any changes to it, below is a proposed resolution for adopting such a change:
BE IT RESOLVED, that to ensure the Library's Safety Plan is evolving as our information, operations, and needs evolve, the board adopts the attached [date] version of the Safety Plan, effective [date/immediately].
Now, all that said, I know there could still be a few hiccups (plans on paper often get shredded by reality). Here is the obvious “hiccup” I see, and a proposed way to address it:
If the "difficult" patron suddenly discovers that the bench they like to use and socialize from is suddenly not there/unavailable, and they have a strongly negative reaction—yelling abuse, or even being physically violent—that is when to call law enforcement, and of course to invoke your Code of Conduct and consider barring or suspending them from the library, as circumstances warrant.
But hopefully, with some modifications to the Safety Plan, and good communication of the changes, this concern can be resolved in a way that not only addresses this specific issue, but deters any other visitor who could pose such a threat.
Please let us know if this approach proves effective.
 I trust public libraries know why this guidance is not for them, but since it is an important reason, I'll footnote it: adjustments to practices that can be demonstrably tied to a concern caused by one individual need to be carefully developed to ensure they cause no constitution-based due process or disparate treatment concerns. Basically, a public library can take the exact same measures I propose in here for this private association library, but must be even more cautious to ensure their actions are not—and cannot reasonably be perceived as—discriminatory or unfair.
 This answer is being composed on January 11, 2021.
 Although the current Safety Plan templates posted on the NY Forward site set out a requirement of six feet, there is nothing saying that an established safety perimeter can't be more (I was at a hotel that used 15 feet, and gave us our room key-cards via a system that felt like I was at a drive-up teller).
 Per Education Law 226(2), the executive committee of your board may have the power to adopt this change without a full meeting, but CHECK YOUR ASSOCATION LIBRARY'S BYLAWS to make sure you can use this approach; if there is no executive committee, your library can follow its procedures for a special meeting or an e-mail vote of the full board.
 email@example.com (Stephanie "Cole" Adams) and firstname.lastname@example.org (paralegal Jill Aures), thanks.
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.
New state guidelines list face shields as acceptable face coverings:
However, people often spend quite a bit of time in the library, especially using our computers. We would like to require that they wear actual cloth (or paper surgical) face masks. Are we permitted to make our own safety rules? It seems to me, that just as we can prevent roller skating in the library, we should be able to set other safety rules for the sake of staff and patrons.
This question came into "Ask the Lawyer" with a request for a quick turnaround, so we'll keep this brief.
Are we permitted to make our own safety rules?
Yes...and no. But that doesn't matter for this question, because the member's real objective is...
"We would like to require that they wear actual cloth (or paper surgical) face masks."
...which a library with a well-developed, uniformly applied Safety Plan can absolutely do.
Why is that?
As of this writing, there is documented evidence that the CDC is still weighing the advisability of face shields. Here is what they have to say:
(For the less cartoon-oriented, the CDC says it like this:)
Of course, at the same time, as the member points out, the State of New York now allows face shields to "count" as a face cover:
(i) Face-coverings shall include, but are not limited to, cloth masks (e.g. homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields.
Meanwhile, the REALMS study has hit the library community with THIS cold cup of coffee:
Libraries should be paying attention to all of these evolving resources, and should regard their Safety Plan as a "living document" that evolves with that information. This will help libraries develop a plan that can help them help patrons adhere to CDC guidelines like this one:
The bottom line? If your library bases its access and services on current information, is careful to adhere to its obligations under the ADA, and adheres to a Safety Plan that provides—based on the combined input from such reliable sources—that certain areas may only be accessed by those wearing faces masks (and/or gloves, and/or only if they agree to spray down certain surfaces, and/or only by a certain number of people a day), it may do so.
It all comes down to having a Safety Plan based on your library's unique size, design, staffing capacity, and collection materials. With a plan that is linked to established factors, the best guidance we can get in uncertain times, and reliable enforcement, anything is possible.
Thanks for an insightful question!
 The answer to THIS question is about 15 pages and has 20 footnotes. Aren't you glad we found a way to make it snappier?
 October 16, 2020. CDC content found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html
 I am "cartoon-oriented." Whenever something can be conveyed effectively via icon or cartoon, it should be. Of course, as a lawyer, I experience no shortage of words.
 My "word of the day," which I learned as I researched this answer, is "fomite" (infected objects). Given what we've all had to deal with in 2020, I am sure I have seen the word before, but was too busy learning the concepts like "zoonotic" & "contact tracing" for it to sink in.
 Even wearing a masks while roller skating in a library (but I'd check that one out with your insurance carrier).
We got lucky: an employee, who was asymptomatic at work but tripped one of the screening factors requiring him to stay home, was tested and found NEGATIVE for COVID-19.
Our employee is coming back to work, but I have been wondering...what if the test came back POSITIVE? If we have to quarantine all our employees, we'd be shut down completely!
First: that is good news about your employee.
Second: a gold star to your library for having a screening system that works, and for following the requirement to restrict an employee who trips a screening factor from on-site work while waiting for test results.
Third: Let's talk about your alternate scenario (the one where you don't get such good news).
As of August 17, 2020, any library that is up and running should have a Safety Plan as required by both the guidance for "Office-based Work", and "Retail Business Activities" (we'll call this the "Guidance").
The Guidance includes the requirement to fill out a New York Forward Business Affirmation Form, which attests to having a Safety Plan. It also answers the member’s question about what to do if an employee tests positive for COVID-19.
Here is what the Guidance (as of 8/18/2020) requires:
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.
Responsible Parties should remotely provide such individuals with information on healthcare and testing resources.
Responsible Parties must immediately notify the state and local health department about the case if test results are positive for COVID-19.
Responsible Parties should refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure” regarding protocols and policies for employees seeking to return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19.
So, the answer to the member's question: "What if the test came back positive?" is: "[I]immediately notify the state and local health department."
After that, the direction from the local health department may vary, but the Guidance requires:
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.
And after that, things can really vary. But in a scenario where every employee of the library came within six feet of their (now confirmed as) infected co-worker, the library really could be looking at up to two weeks of employees in self-quarantine...along with any other response required by the local health department.
This is not a feel-good scenario. But the good news is, the same Guidance that requires a library to require employees to isolate also reduces the likelihood of such a remedy being needed. This is because the Guidance also requires a host of preventative practices to limit exposure in the first place, including:
If a library maps these things out for employees, and consistently enforces them, there will be less need for the "isolation/quarantine" sections. While right now, there is no magic bullet, the simple elements of your library's Safety Plan can reduce the need for quarantine.
And that's it; thanks for a great question. I hope this answer never has to come in handy for your library. But just in case it does: here’s a quick checklist for the steps listed in this response :
"CHECKLIST FOR RESPONDING TO NOTICE OF COVID-19 EXPOSURE AT THE LIBRARY; TO BE USED IN CONJUCTION WITH UPDATED SAFETY PLAN"
Here is a template notice to the board, designed to reflect taking the necessary steps, while also protecting employee privacy:
On ____________, the library received notification of an [individual/employee] testing positive for COVID-19. As required by current guidance from the State, we notified the Health Department immediately. At this time, the direction from the local health department is _____________________________________[this may be extensive].
We have determined that # employees must self-isolate until they DATE.
We have determined that # employees must self-quarantine until DATE.
We have confirmed with the health department that as a result of this notice and response, and consultation with the [Executive Committee of the board/full board/board officer/other] we will [close/reduce operations/operate under the status quo], unless the board determines otherwise.
Our Safety Plan has been followed and we have retained the documentation showing such compliance.
 Any library that does not consider itself "operated by a local government or political subdivision", that is, since the New York Forward guidance specifically states that the various Executive Orders' business restrictions do not apply to such libraries.
 Found at this link as of 8/17/2020: https://coronavirus.health.ny.gov/system/files/documents/2020/06/doh_covid19_publicprivateemployeereturntowork_053120.pdf
 According to the Guidance, "close contact" is "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."
 This should NOT be happening!
 Remember, local governments and political subdivisions may decide not to follow these precise requirements. That said, if it determines it is operated by a local government or political subdivision, a library must then follow the safety plan set by that local government or political subdivision.
 Some of this isn't required by applicable laws or Guidance, but is in there to position a library to easily show it followed applicable laws and Guidance.
 While keeping confidentiality at top of mind, libraries need to think carefully about a voluntary system allowing users to log visits for purposes of contact tracing. A voluntary list of names, dates and times, maintained with all due care for privacy, can position a library to participate in a local health department's contact tracing initiative. This can in turn help a community reduce its rate of transmission.
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.
Should an event occur, is it legal in NYS to institute a lockdown in a public library?
This question brought back a lot of memories for your “Ask the Lawyer” attorney.
Between 2006 and 2017, I was a full-time in-house attorney on a college campus. On April 16th, 2007, my time in higher ed was forever changed, when the entire campus froze to watch the reporting from Virginia Tech. 32 people dead. 17 wounded.
Over the years, as incident after incident occurred on schools and college campuses, my colleagues in higher education would wonder “Are we next?”
I was lucky; my campus had no such incident during my time there (or since). But I was there for the development of our active shooter response protocol, there for our on-campus trainings, and there, as an administrator, for our “incident response” trainings with local, state and federal law enforcement…getting ready for a day when we might not be lucky.
Large (and small) public institutions and facilities like schools, museums, malls, and of course libraries have been struggling with how to prepare for the day someone brings a gun and threatens or perpetrates violence on their property. It is a horrific thing to contemplate, and a scary prospect to plan for…especially because there is a diversity of opinion as to what the best prevention and training techniques really are.
Some institutions have the benefit of mandates. In New York, all schools must practice active shooter response, and there are laws, regulations and experts in place to guide those mandated drills. And college campuses are mandated to prepare for emergency response.
Public libraries, on the other hand, do not have such a state-wide mandate. Although chartered and operated in connection with a municipality, they are independent operators. This means that though they may choose to follow whatever policy or procedure their municipality has developed for emergency response, or to adopt their own, that choice requires board approval.
But the member’s precise question is: is it legal in NYS to institute a lockdown in a public library?
First, let’s clarify what is meant by “lockdown.”
Per §155.17 of Chapter 8 of New York’s Rules & Regulations:
Lock-down means to immediately clear the hallways, lock and/or barricade doors, hide from view, and remain silent while readying a plan of evacuation as a last resort. Lock-down will only end upon physical release from the room or secured area by law enforcement.
To some people, “lockdown” (hiding, barricading) in the face of an active shooter sounds like a really good idea. Others might prefer to run. And still others think the best option would be to fight.
According to the New York State Division of Homeland Security and Emergency Services, depending on the situation, any of these could be the right choice. Watch the video, “480 Seconds” at this link. It depicts, in stark and practical terms, the different “best” responses, depending on an active shooter situation. http://www.dhses.ny.gov/aware-prepare/step3.cfm
“Lockdown,” as defined in the NYS Education Law, was determined to be the best option for schools because they house a large, vulnerable population of minors. While many of us only hear about this procedure through our kids (as we try to conceal our terror), school librarians know first-hand that the drills our kids do are only a small part of a system that requires:
Any lockdown plan should be this well-developed, because as “480 Seconds” shows, sheltering in a secure place is not the only response to an active shooter situation. Further, even in a place with a lockdown plan, responses will vary by building type, function, and population served (consideration of people with different disabilities, for instance, requires continually renewed attention). Given certain variables, a lockdown procedure might be the best option, but even once that has been determined, ensuring doors can be secured, signage is properly posted, and staff are trained, are all critical elements of the plan.
So, is it legal to institute a lockdown procedure in a public library? Yes. Library boards can (and should) pass emergency response policies, include active shooter policies, and a lockdown plan might be determined to be the best response. That said, unlike schools entrusted with minors, libraries serve a large population of independent, autonomous adults. Unlike law enforcement responding at the scene, a staff directive to stay in place will only have the force of library policy…which is different from an order by law enforcement. A person who wants to leave (and whose biology is telling them they MUST leave) might do so.
For me, the most important aspect of this question is not if a lockdown policy at a public library is “legal,” but how a public library develops its active shooter response plan and trains its staff. This can be no cut-and-paste job; it is a work for a credentialed and experienced expert. There is grant money and aid out there for not-for-profit libraries to seek this critical input. And in many places, simply reaching out to local government can put you in touch with all the resources you need.
Just like “480 Seconds,” the services of an expert will help your library apply the collective wisdom about active shooter situations to the somber but vital act of planning for an actual situation.
We can never be truly ready for an active shooter incident, but we can be prepared. Lockdown might be part of that preparation. Thank you for this important question.
 It was probably a false sense of security, but these were the times when I was glad to have ROTC on campus.
 There is one exception to this: a public library that rents its property may be required, in its lease, to follow the rules of its Landlord. But that would still mean the board had approved the terms of the lease.
 This video is not graphic, but it is very serious. I suggest you not watch it at your library unless it is part of an in-depth and well-considered training on active shooter response, led by a credentialed and experienced expert (local law enforcement should be able to assist in finding that person).
 See NYS Education Law §2801-a.
 An emergency response plan, along with plans for an active shooter, is listed as a recommended policy in the NY Library Trustees’ Association’s 2018 Trustee Handbook, page 115.
 Of course, some libraries have private security, or coordinate with law enforcement. If that is the case for your library, their training and level authority must be incorporated into your plan, and that may change the dynamic.
 This is very serious: your plan and training should be put in place using a contracted, person with established credentials and experience writing and training on emergency preparedness and active shooter response. There are many accredited and recommended programs for this. For a public library, this would be through the usual procurement process.