RAQs: Recently Asked Questions

Topic: NY Hero Act and libraries - 07/14/2021
How does the NY HERO Act https://dol.ny.gov/ny-hero-act apply to the different types of libraries?...
Posted: Wednesday, July 14, 2021 Permalink

MEMBER QUESTION

How does the NY HERO Act https://dol.ny.gov/ny-hero-act apply to the different types of libraries? Are Association Libraries included?

WNYLRC ATTORNEY'S RESPONSE

The letters in the "NY HERO Act" stand for "Health and Essential Rights."[1]

What "essential rights" does it protect? 

  • Section one of the HERO Act amends the New York Labor Law to create an "airborne infectious disease standard" covering all private employers.  The standard requires many things that will sound familiar: health checks, sanitization practices, and other preventative measure when there is a declared risk of airborne disease.
  • Section two of the HERO Act amends the New York Labor Law to create joint employer-employee "workplace health and safety committees" (where there are 10 or more employees), so workers can collaborate and be involved in safety initiatives.

The new laws are activated only when an "infectious disease" is declared by the NY Commissioner of Health.  This means that right now, while the law is in effect, but no disease is designated, there is no need to have an active plan...but entities have to be ready to spring into action.[2]

Which brings us to the question: What types of libraries must comply?

We'll tackle the easy part first: without question, association libraries, which are private education corporations, must comply. 

For non-association libraries ("public" libraries), the language of the Act is much less clear, since the Act specifically exempts "...the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

That sounds simple, right?  They should be exempt.  After all, libraries are considered, in some contexts, nigh-governmental entities.

But as many know, a public library's status as "governmental" ebbs and flows.

Here are just two recent examples:

Example #1: 2020 brought an interesting development when, after months of anxious curiosity, the NY Forward "powers that be" confirmed that public libraries were always considered to be exempt from the Executive Orders shutting down private businesses (and instead, were to follow the mandates governing local municipalities).  So: a governmental entity.

Example #2: A noteworthy new case[3] from NY's second-highest court has found that for purposes of the Prevailing Wage Act (Section 230 of the NY Labor Law), a public library is NOT "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education."[4]  In other works:  not a governmental entity.

So, when it comes to this new law, I can't point to any definite authority either way; just because one part of the Labor Law excludes libraries, doesn't mean another does.  And certainly, we have no case law yet.  That said, if I HAD to pick, I would err on the side of caution and say that public libraries, which are education corporations with their own governance structures (just as the Court commented in "Executive Cleaning"), have to comply with the HERO Act.

Since the stakes are high for non-compliance, any public library that decides the HERO Act doesn't apply to them (and that's fine to reach a different conclusion; I am not omniscient, nor do I have a crystal ball) should:

1) Get that opinion, in writing, from an attorney retained to give advice to that library specifically, and considering its unique position under the law;

AND

2) Confirm the library is in compliance with New York Labor Law 27-a, which covers workplace safety in "the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof."

The bottom line on this: when it comes to occupational safety, a public library can't fall into a hole between the mandates governing public and private entities: it either has to follow the rules of a "governmental instrumentality" employing people as government employees (and giving them all the protections government employees get under the law) OR it is following the rules of a private education corporation (and giving them all the protections private employees get under the law).

Since the HERO Act is really about taking all the protocols the State of New York developed in response to COVID, and ensuring they are on hand and ready for the next pandemic,[5] a library can't go wrong by having "an exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the department of labor, and the department of health."[6]  By making a clear decision about what safety rules apply to your library, and developing a plan to follow them, you can not only comply with the law, but show that the library is working to keep employees safe.

 

Thank you for an important question.

 



[1] What about the "O?"  I double-checked the bills in both the State Senate and Assembly and apparently, it's just a bonus letter (I guess the "HER" act would imply only women get clean air).

[2] The NYS Department of Labor, as of July 12, 2021, states: "Currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect."

[3]  (Matter of Exec. Cleaning Servs. Corp. v NY State Dept. of Labor, 193 AD3d 13 [3d Dept 2021])

[4] Contrast this with the definition of who’s in/excluded from the HERO Act: "'Employer' shall mean any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual in any occupation, industry, trade, business, or service. The term shall not include the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

[5] I know, my stomach turned a bit when I typed the phrase "next pandemic."  But no point putting our heads in the sand.

[6] From the requirements summarized in the NYS Department of Health guidance here: https://dol.ny.gov/system/files/documents/2021/07/p764-the-airborne-infectious-disease-exposure-prevention-standard-v4.pdf.

Tags: Association Libraries, COVID-19, Emergency Response, Public Libraries, HERO Act, NY Labor Law

Topic: Open Meetings Law and Social Distancing Requirements - 07/06/2021
Now that Open Meetings Law modifications have been lifted, are we still required to maintain physi...
Posted: Tuesday, July 6, 2021 Permalink

MEMBER QUESTION

Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings? We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing? If some of them are not vaccinated, do we required all the trustees to wear masks? Do we provide physical distancing for the ones who are not fully vaccinated? I would like to host a staff luncheon ( I understand that is now allowable) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?

WNYLRC ATTORNEY'S RESPONSE

This question comes at a very challenging time.[1]

The question is difficult because right now, the World Health Organization is looking at the "Delta Variant" of COVID-19 and telling the world to consider continuing to use masks and social distancing while inside.[2]

New York, of course, after a 6-day scramble, started following the Center for Disease Control's May 13 "surprise" guidelines stating that vaccinated people no longer need to wear masks or social distance indoors.[3]  And as of July 1, 2021, the state announced that almost all COVID-related restrictions were lifted.[4]

Where does this leave us?

Throughout the Pandemic, when asked about how to interpret and follow law, regulations, and Executive Orders governing the state's COVID response, my watchword has been: "Safety first."

After that, I have listed what is required at that point in time, and then referred libraries and cultural institutions to resources about how they can develop a Safety Plan[5] crafted to suit their unique identity (by "unique identity" I mean things like a large library with outdated HVAC and windows that don't open, has different considerations than a small library with assurance of constant fresh air).

With so much uncertainly at this time, my tired playbook is getting tested.  But I'll use it to try and answer each of the member's questions:

Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings?

If your (now optional, but if the board keeps it in place, enforceable) Safety Plan still requires physical distancing, then yes.

We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing?

If your Safety Plan has opted to continue using the NYS May 19th guidance, and the meeting is not exceeding the occupancy threshold, no, you do not.  HOWEVER, there is nothing to stop the board from deciding that, in the interest of safety and enabling each trustee to take whatever steps they need to feel safe, they are going to allow some trustees to attend from a remote location.[6]

If some of them are not vaccinated, do we required all the trustees to wear masks?

The WHO would (currently[7]) say: yes.

The CDC and the State of NY would (currently[8]) say: no.

For what it's worth, I tend to follow the most cautious reputable source at any given time (so would say: there is ample ground for your Safety Plan to require this, while there is also ample ground for your board to revise the Safety Plan to require only the bare minimum of advised precautions).

Do we provide physical distancing for the ones who are not fully vaccinated?

If that is at all possible, I strongly support that idea.  Being able to show an institution took the time to consider the best way to keep its community safe is good from any angle: mission, legal compliance, and employee/community relations.

I would like to host a staff luncheon (I understand that is now allowable[9]) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?

It pains me to say it, but sometimes, the law is not the best guide as to what to do!  Legally, if your library is still using the May 19th NYS Guidance, your Safety Plan can allow for this to happen, if you follow the required prescriptions.

However, it makes sense to me to "read the room" and see if such a luncheon would be a team-building exercise, or (because some employees might not feel at ease eating in close proximity to others) risk bad feelings and alienation.  If everyone cannot attend with the same level of comfort, it might be better to come up with an alternate bonding exercise.[10]

Conclusion

I truly wish I could offer more definite guidance.  The truth is, libraries--even with the return to the strict requirements of the Open Meetings Law--have many options for how to proceed.  So as tired as it may sound, put "safety first," and all things will follow from there.

Coda

Since the Powers That Be out there move quickly, here are some snapshots of the current guidance I am referencing in this answer.

Snapshot of the current WHO Guidance:

Screenshot of current WHO Guidance as of July 6 2021.

Snapshot of NY's July 1 announcement:

Screenshot of NY.gov announcement from July 1, 2021.

 

Snapshot of New York's May 19th Guidance (now largely optional):

Screenshot of NY's guidance from May 19, 2021, which is now optional

 

Snapshot of current (June 10) OSHA guidance:

Screenshot of OSHA guidance from June 10, 2021.

 



[1] Has any date since March of 2020 not been in a "challenging time?"  I have a dim recollection of July of 2020 being semi-okay.

[5] Whether they were required to have one, or opted to have one.

[7] As of July 2, 2021, at 11:30 AM.  Go ahead, WHO, hit me with a change-up, I can take it.

[8] As of July 2, 2021, at 11:30 AM.  Go ahead, CDC and NY Department of Health, hit me with a change-up, I can take it just as well as I could at 11:30!

[9] This answer is complicated enough, I am not going to tackle the fiscal considerations of hosting events for staff!  See 1990 Comptroller Opinion #144 (May 15, 1990)

[10] This part might be a better question for the "Ask the HR Expert" service, since my idea of bonding is listening to Supreme Court Oral argument while providing color commentary (this is why my paralegal plans our events).

Tags: Board of Trustees, COVID-19, COVID-19 Vaccine, Emergency Response, Open Meetings Law, Safety Plan

Topic: Open Meetings Law and end of NYS' Emergency Status - 06/30/2021
First question: With the expiration of the Executive Orders on June 24th, 2021, including the Orde...
Posted: Wednesday, June 30, 2021 Permalink

MEMBER QUESTION

First question: With the expiration of the Executive Orders on June 24th, 2021, including the Order modifying the requirements of the Open Meetings Law, are libraries back to the "old way" of conducting trustee meetings?

Follow-up question: If the answer to the first question is "yes," does this mean that trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?

WNYLRC ATTORNEY'S RESPONSE

First question: Yes...with the expiration of the Executive Orders on June 24th, including the Order modifying the Open Meetings law,[1] things are "back to normal."

Or, as the Committee on Open Government, the authority on the State's Open Meetings Law (OML), put it:

Screenshot from NYS' Open Meetings' website that says authority for remote meetings ends June 24, 2021.

 

So, does this mean "trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?"

Various case law and commentary about the OML has confirmed that when a public body needs to meet via teleconference, the public must be able to attend from any remote location "calling in" to the meeting, and that location should be part of the meeting notice.[2]

Or, as the COOG put it in Advisory Opinion 5535 in 2018:

"So long as the public is permitted to attend at any location at which a member participates and can observe the members wherever they may be, I believe that the members may participate and be counted for purposes of attaining a quorum and for voting, and that a meeting may validly be held." [emphasis added]

For large public bodies such as the Regents, the New York Power Authority, and other entities that must hold publicly accessible meetings, and whose board members may reside in far-flung areas of the state, the use of publicly accessible call-in sites comes with an IT team and a budget.

For a public library, whose members generally reside within that library's area of service, this "back to normal" pretty much means that you're back to meetings in person.

Of course, under the Not-for-Profit Corporation law (which, along with the Education Law, governs the conduct of library meetings), a library board of trustees is allowed to conduct meetings telephonically.[3]  When coupled with the requirements of the OML, however, that latitude is severely reigned in--since whatever space is used for the remote call-in must be accessible to the public, and included in the notice.

For this reason, unless a library trustee is very comfortable inviting the public into their home, I advise against using the "dial in from home" option.[4]

NOTE:  This answer does not consider if a trustee needs to attend remotely due to it being an accommodation under the ADA.  That is a separate and critical question; for now, I'll simply say that adherence to the OML should not rule out consideration of ADA issues.

The transparency created by Education Law 260-a's requirement that public libraries abide by the Open Meetings Law is laudable--but is also based on older notions of technology.  Now that the State of New York has lived under different rules for over a year, we might see some changes in legislation.

But for now, we're "back to normal."

I hope this is helpful.

 



[1] Allowing them to be held via teleconference so long as the meeting is accessible to the public, recorded, and transcribed.  For more comments on this, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/120 and https://www.wnylrc.org/ask-the-lawyer/raqs/185.

[3] See NFPCL Section 708(c) "Unless otherwise restricted by the certificate of incorporation or the by-laws, any one or more members of the board or of any committee thereof who is not physically present at a meeting of the board or a committee may participate by means of a conference telephone or similar communications equipment or by electronic video screen communication. Participation by such means shall constitute presence in person at a meeting as long as all persons participating in the meeting can hear each other at the same time and each director can participate in all matters before the board, including, without limitation, the ability to propose, object to, and vote upon a specific action to be taken by the board or committee."

[4] I recently saw a very good presentation on parliamentary procedure for library boards.  The presenter commented that disclosure of home addresses should not be made, due to safety concerns.  I absolutely agree with that caution, but must emphasize that if a trustee calls in from a remote location, with the emergency modification of the law over, the OML requires that all "locations" of the meeting (including a remote call-in site) must be disclosed.

Tags: Board of Trustees, COVID-19, Emergency Response, Executive Order, Open Meetings Law

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

MEMBER QUESTION

We are preparing to go to the "masks recommended" phase.  Staff would still be required to wear masks in public portions of the building, but not in their non-shared offices.  However, for those in shared offices, how do we handle the vaccinated/not vaccinated issue?  Do we go with the honor system and tell those in shared offices that if they are vaccinated, they may go maskless?

I've heard that some restaurants are allowing their servers to go maskless if they show proof of their vaccination to their employer.  Would we be allowed to do something like that?

WNYLRC ATTORNEY'S RESPONSE

[DISCLAIMER: This answer presumes there is no collective bargaining agreement or landlord/municipal host terms that impact the library's flexibility while revising their Safety Plan.]

Okay, with that disclaimer out of the way, here are my "short answers" to these excellent questions:

"[F]or those in shared offices, how do we handle the vaccinated/not vaccinated issue?"

Short answer:  Revise your library's current Safety Plan to specify how it has adopted the 5/19 NY Forward Guidelines (for advice on how to do that, please see my "Long Answer," below).

"Do we go with the honor system and tell those in shared offices that if they are vaccinated, they may go maskless?"  

Short answer:  I advise requiring proof (for the legal/operational rationale behind this opinion, please see my "Long Answer," below).

"I've heard that some restaurants are allowing their servers to go maskless if they show proof of their vaccination to their employer.  Would we be allowed to do something like that?"

Short answer:  Yes (for more on that, please see my "Long Answer", below!).

Long Answer

This question comes at a good time, since on June 10, 2021, the U.S. Occupational Safety & Hazard Administration ("OSHA") updated its guidance for employers on protecting workers from COVID-19.[1]  This new "6/10 OSHA Guidance" speaks to questions like these. 

But first, a quick recap. 

When the CDC came out with their "surprise" interim guidance for fully vaccinated people on May 13th, 2021 (the "5/13 CDC Guidance"), it took New York six days to incorporate it (into the "5/19 NY Guidance").

OSHA, on the other hand, took a bit more than six days.[2]  But by June 10th, here's what they had to say:

CDC's Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.

And from there, OSHA takes it granular.[3]

The 6/10 OSHA Guidance sets out an array of factors for employers and workers to not just consider in isolation, but to think about as a continuum of risk assessment and safety measures.  The factors they list include consideration of vaccination status, and shared office space.

Because it is so critical that employers get this right, I am putting this "6/10 OSHA Guidance"[4] below.  Now that we have this resource, I strongly advise employers to refer to it when updating their Safety Plan to include the 5/19 NY Guidance.

And now, for this library's very specific set of questions about non-public, shared office space, here is the rest of my "long answer."

As you can see in OSHA's listing, the consideration of shared office space isn't simply one of vaccination and proximity.  It also involves the consideration of things such as ventilation, worker education, and individual worker vulnerabilities.

Because of this, there is no "one size fits all" answer to this library's question.  Rather, the library should review the non-public, shared workspace against the OSHA criteria, and then craft a customized plan...recognizing that the protocol for areas with up-to-date HVAC systems will be different from a work area near the stacks where there might be very little fresh air. 

This variability is the key consideration of shared non-public workspace.  Your library's safety measures may be different when the weather is cold and workers can't open a window.  Your library's Safety Plan measures may be limited if the workspace is near a rare book collection or other assets requiring precise climate control.  And on top of that (literally, as an add-on after the fact) your library will need to consider the impact that a Safety Plan's working conditions can have on individuals with disclosed, pre-existing conditions (such as allergies, heightened vulnerability to COVID, or a health condition impeding vaccination).[5]

Within all this variability (which is a LOT for any employer to handle, to say nothing of a library that is also focusing most of its energy on meeting the needs of the public), I advise requesting proof of vaccination for two reasons.  First, it positions an employer to be more confident in their adherence to the plan they develop.  Second, it positions employees to be confident that they are in a position to advocate for their own health.

Now, on the flip side, the employee relations challenge of requiring workers to provide vaccination status can be onerous.  Some people are just not comfortable revealing that type of information, and I totally get it.  BUT the EEOC and the New York State Division of Human Rights have both determined that an employer requesting proof of vaccination is not the same as an employer demanding disclosure of confidential medical information.[6]  Barring a union contract or other term forbidding the demanding proof of vaccination, employers should be confident they can require it.

That confidence can, in turn, transfer to the employees who are certain that their unmasked and nearby co-workers are vaccinated.  In my experience, nothing can erode trust like an honor system where someone is suspected of being dishonorable.   Further, that suspicion can turn into full-on blame if a worst-case scenario emerges and someone does get sick.

And while the current CDC and NY Forward guidance mean an employer won't likely be successfully sued for using the honor system as opposed to requiring proof, I wouldn't put it past one of my fellow attorneys to try.[7]  This is especially true if your library's Safety Plan or past planning has identified certain front-facing work or other tasks as "higher" risk, meaning there is an acknowledgement on the record that some work may bring increased exposure.

Okay, to sum up: you don't have to, but it's worth considering requiring proof of vaccination.   But most critically, whatever your library does, if you update your Safety Plan, factor in the new 6/10 OSHA Guidance.

Since the combination of options is extensive (New guidance? Old? Require vaccinations? Proof?) I have laid out a chart below.  Below that are some of the high points of the 6/10 OSHA Guidance, which every employer should read.

I hope this reply makes up for in helpfulness what it poses in complexity.  I wish you calm and careful planning as your library moves into this next phase.

Safety Plan -->

 

Employee requirement -->

No Use of NY Forward 5/19 guidance[8]

Updated to NY Forward 5/19 guidance

and uses "honor system" only for employees

Updated to NY 5/19 guidance and library requires proof of

vaccination for employees

Employee vaccination status not considered in Safety Plan

This means your library is still using your pre-May 19th Safety Plan; that's fine, just stick to it until it is updated.

 

Not possible (if using 5/19 guidance, the library must consider vaccination status).

Not possible (if using 5/19 guidance, the library must consider vaccination status).

Employee vaccination status considered in Safety Plan but vaccination is not required to perform routine duties of job

This means your library is still using your pre-May 19th Safety Plan; that's fine, just stick to it until it is updated.

 

If your library is using the honor system, but still structured so vaccination is not a factor in performance of routine duties, so long as the OSHA 6/10 guidance doesn't suggest otherwise, carry on!

If your library is requiring proof of vaccination to use 5/19 guidelines, but still structured so vaccination is not a factor in performance of routine duties, so long as the OSHA 6/10 guidance doesn't suggest otherwise, carry on!

Library-employer requires vaccination as part of Safety Plan and vaccination is required to perform routine duties of job.

With such rigorous requirements, assessing the Safety Plan under the OSHA 6/10/21 guidance is wise.

 

This combination brings some risk since it bases safety on vaccination but does not require proof, which limits the ability to assuage employee relations concerns regarding unvaccinated colleagues.

This combination provides the best documentation of maximum risk management and positions library to address employee relations concerns regarding unvaccinated colleagues.

 

 

OSHA

Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. 2

Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

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

Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.

At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) can separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.

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

Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Under federal anti-discrimination laws, employers may need to provide reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.

Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.

When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR 1910, Subpart I (e.g., 1910.132 and 133). There are times when PPE is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make such a request. Other workers may want to use PPE if they are still concerned about their personal safety (e.g., if a family member is at higher-risk for severe illness, they may want to wear a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances and ensure the equipment is adequate to protect the worker.

For operations where the face covering can become wet and soiled, provide unvaccinated and otherwise at-risk workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide protection by themselves. See CDC's Guide to Masks.

Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.

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

For basic facts, see About COVID-19 and What Workers Need to Know About COVID-19, above and see more on vaccinations, improving ventilation, physical distancing (including remote work), PPE, and face coverings, respectively, elsewhere in this document. Some means of tracking which workers have received this information, and when, could be utilized, by the employer, as appropriate.

In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation. This information should also be provided in a language that workers understand. (See Implementing Protections from Retaliation, below.) Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.

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

In addition, employers should be aware that Section 11(c) of the Act prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer. In addition, mandatory OSHA standard 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.

Note on recording adverse reactions to vaccines: DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not want to give any suggestion of discouraging workers from receiving COVID-19 vaccination or to disincentivize employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. OSHA will reevaluate the agency's position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.

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

In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.

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

Appendix: Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers

Employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors:

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

In these types of higher-risk workplaces – which include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing – this Appendix provides best practices to protect unvaccinated or otherwise at-risk workers. Please note that these recommendations are in addition to those in the general precautions described above, including isolation of infected or possibly infected workers, and other precautions.

In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:

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

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

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

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

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

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

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

 



[1] While not every library is covered by OSHA regulations, OSHA's standards are a "go-to" for protecting workers, and much of New York's guidance on COVID safety refers employers to their materials.

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

[3] "Granular:" a tired buzzword, I know. What word/phrase would I have used pre-2014?  "Particular?"  "Minutely specific?"  Look at all that CDC minutia!  Sometimes "granular" really does get the job done.

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

[5] I once worked in a dampish half-basement that had a window that would open onto a thriving crop of ragweed.  In the winter, the mold from the damp got activated by the heating units.  Hello, allergies!

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

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

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

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

MEMBER QUESTION

Our postman refuses to wear a mask in the building even though it is policy and a NYS mandate. When asked to, he refuses and because of that, now delivers the mail by yelling "mail" into our building bookdrop and drops the mail inside. If no one hears him, we miss our opportunity to give him outgoing mail, which he told us to just drop in a mailbox down the street. Yesterday he placed two very heavy boxes in the vestibule without us knowing.

I did call the post office and the postmaster stated that he can only ask him to wear one, but he can't force him to. Am I missing something? What is the legal obligation of the mail carrier? And why doesn't he have to follow the rules of the establishments he is entering? It is now getting to the point where it is disrupting our mail service. Do I have a leg to stand on here?

WNYLRC ATTORNEY'S RESPONSE

I am expediting the answer to this question in light of the new guidance issued by the CDC on 5/13 (stating that people two weeks past their final vaccination can relax on wearing masks)[1], because I foresee more situations like this are going to arise.[2]

The short answer to the member's question is: yes, your mail carrier should provide service in a manner compliant with USPS delivery standards, while following the requirements of current executive orders and your library's safety plan.

Further, based on the delivery standards in various postal handbooks,[3]  I think you indeed may have "a leg to stand on" in pressing the matter.

That said, when it comes to contract service providers or vendors--even the USPS--refusing to abide by your library's policy and, instead, altering a long-established mode of service, the only recourse (unless there is a service contract in play[4]) is to do what you have done: take up the issue with their employer.

So, what more can the member do?

This question gave me a chance to do a little digging, and I was not surprised to see that the USPS  has been dealing with this type of issue for a year now[5].

The pandemic has thrown curveball after curveball at the USPS.  This onslaught has resulted in a series of temporary guidance and local union contract modifications being layered on top of the already complex web of regulations and union contracts governing the delivery of the US mail.

In other words, the "legs" supporting the case for safe and compliant delivery in this case might be tangled...making identifying the applicable rules tough, even for a local supervisor with the union contract at their fingertips. 

If you try to re-visit the issue with the local office, my suggestion is to approach the issue in a spirit of problem-solving, focused on how the library can get the "actual delivery" it needs, while keeping the postal carrier safe and the library compliant with its own policy.

The Postal Service, the United Postal Workers Union (the APWU[6]) and the National Association of Letter Carriers" (or "NALC") support the use of acknowledged safety measures. 

In December, 2020, the President of the NALC wrote to the union's membership[7]:

Today, over 14,000 postal employees are under quarantine from the virus. Well over 66,000 previously quarantined postal employees have been cleared and returned to work. About 5300 of the currently quarantined postal employees have tested positive for the virus, and another 1800 plus are presumed to be positive. Almost 16,000 postal employees who tested positive in the past have recovered and returned to work. Of all these numbers, about thirty percent are letter carriers. Sadly, 105 active postal employees have passed away from the virus, including 22 city letter carriers. We have been notified of 6 retired members who have passed away from the virus as well.

The heroic work you do each day delivering the nation’s mail is of great importance to our economy, to our health, and through the election season during a pandemic, to our democracy. As you continue this important work, please also continue to take every precaution regarding social distancing and face coverings. Please do all that you can to protect yourselves, your families, your coworkers, and your customers. Thank you for all that you do. God bless each of you and your families, please stay safe. [emphasis added]

So, what more can the member do here?

While acknowledging it could be a tangled web, working with a post office's local supervisor to truly confirm that the carrier cannot be required to follow your safety plan--in light of the statements by both USPS and the unions--might be a good first step.

I also want to take the opportunity to address the "5/13 development" (the new CDC guidance).

This pandemic isn't over, but we are clearly moving into a new phase...a new phase that will include the state, the various counties and municipalities, and OSHA (whose COVID guidance has been the go-to for workers across the country, including New York State), working to "catch up" with the new guidance from CDC.[8]

What can a library do right now to address this new CDC guidance?  We'll know soon enough...but (this is being finalized May 16, 2021) we don't know right now.

Until we have that new guidance, from a source you trust (confirmed by your county health department, straight from OSHA, or the NY Department of Health), here is a suggested template for addressing the new guidance:

Well, the CDC hit us with a curveball on 5/13 when it issued guidance stating that people at least 2 weeks past their final immunization shot can be without masks.

As of 5/16, the State of New York has not changed its mandates and guidance to incorporate this guideline.  In addition, OSHA, from which many draw their safety practices, has not changed its guidance yet.

Therefore: for now, the [NAME] Library's Safety Plan is unchanged.  Please continue to wear masks as before, regardless of vaccination status.  Further, please continue to use social distancing when required, and continue with our established wipe-down procedures.

We are all ready for a time when we can come to work with less restrictions.  We expect updated guidance from the State soon, and we will amend our Safety Plan when it is appropriate to do so.

Until then, please keep following the Plan, and carry on.

Thanks for all you do.

Overall, here is my suggested order of priorities for board and library employees working to provide critical services in this time of rapid change:

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

We're getting there.

More soon....



[1] Stay tuned for even more on that, since on 5/16 we got word that NY will have guidance out on this by 5/18.

[3] Such as this one linked to the American Postal Workers Union site at https://apwu.org/contracts/handbook-m-41-city-delivery-carriers-duties-and-responsibilities: "131.35 Deliver mail according to the instructions or known desire of the addressee. Otherwise, deliver as addressed if the addressee has not moved."  [emphasis added]. 

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

[5] The link takes you to https://www.uspsoig.gov/document/employee-safety-%E2%80%93-postal-service-covid-19-response, which as of 5/14/21, stated "To slow the virus’s spread, the Postal Service required all employees to wear face coverings where a state or local mandate was in place and social distancing could not be achieved,[and] requested customers to wear face coverings in all retail facilities...."

[7] Full statement here: https://www.nalc.org/news/nalc-updates/body/12-3-20-statement.pdf. This message also includes a demand by the union president that then-President Trump apologize for stating that mail carriers were selling ballots sent in the mail.  2020 was a tough year for everyone, but this letter really brought home the extra burdens it brought to mail carriers.

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

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

Topic: Update on retention of health screening records - 04/29/2021
I am writing to update the excellent advice on the RAQ page from November 2020 in regards to the r...
Posted: Thursday, April 29, 2021 Permalink

MEMBER QUESTION

I am writing to update the excellent advice on the RAQ page from November 2020 in regards to the retention of health screening records in a school district, local government, or state agency (under a separate retention schedule.)

I just called the state archives to confirm the retention period of library employee daily health screenings using LGS-1. They referred me to item 792c (positive health screening) with a 6 year retention and 792d (negative health screening) with a 1 year retention. (pg: 210-211 in the schedule.)

They have also updated their guidance on records related questions for COVID-19 
http://www.archives.nysed.gov/records/documenting-government-response-to-covid-19

Thank you for answering the original question in November. I hope this update to the response is helpful.

WNYLRC ATTORNEY'S RESPONSE

First: thank you very much for your kind words and feedback.  Both are very appreciated, and I encourage users of the service to keep a dialogue going--the service is only as good as the questions and input that inspire it.

Second, just to recap my advice from the November, 2020 "Ask the Lawyer" referenced by the member, it boiled down to:

"With no clear bucket and no clear requirements, at this point, I have to answer that retention of proof of screening should be permanent."

Time, as they say, has marched on, and as the member states, the State Archives has offered some additional guidance on this topic.

Here's where I am at: I have reviewed the additional information referenced by the member, and despite that input, I am just not confident that the time periods in LGS-792 "c" and "d" are the right fit for records showing a public library's routine use of employee screening as part of their Safety Plan,[1] and I continued to advise that retention be permanent (at least for now).

Here are the three reasons for my continued hesitation:

Reason 1: LGS-1 792a-f have a clear application, and I am not certain a pandemic response is quite it

I appreciate that 792c, which is part of the "Public Health" section of the LGS-1, applies to a "positive report" of a screening, and 792d is for a "negative report of individual screened."

However, as the remaining sections of 792 show, 792 applies to screenings conducted for public health initiatives that also (might) use: summary reports, master indices of "participants," informed consent forms, and a log used to compile data extracted from the screen.  

Logs, data crunching, and "informed consent" are all part of a public health agency's toolbox for public health initiatives in response to concerns such as the transmission and impact of a dangerous virus like COVID-19.

But unlike the majority of such initiatives, which tackle challenges such as STD's, tuberculosis, and cancer, employee health screenings for COVID-19 symptoms are part of a much larger effort conducted as part of an emergency response.

Reason 2: Emergency response records under the LGS-1

Because of the "emergency response" aspect discussed above, when I first reviewed the original question, I considered the applicability of LGS-1 802 ("public health incident files") which pertains to "records related to public health emergencies, communicable disease occurrences, and epidemics." 

Under 802 (also referenced in the State Archive's resource linked by the member), the retention period for "[s]urveillance, investigation, and response records" created in response to an epidemic is THREE YEARS "after [the] outbreak has abated."

Are a public library's employee health screenings "surveillance, investigation, and response records" during a "public health incident?"  Since employers are required to report the names of employees who screen positive to their local health department--who then engage in contract tracing and outreach--I believe they could be, which debatably makes the retention period of employee screenings (positive or negative) three years.

However, even three years doesn't sit right with me.  Here is why:

Reason 3: The other reasons to keep the records

My original answer went a little beyond the scope of required retention, addressing not only the precise retention period that might be required by the NY Arts & Cultural Affairs Law,[2]  but also, the other factors a public library might wish to consider when determining how long to retain the records of employee screenings.[3]

These "other factors" include legal claims based on alleged non-compliance with required pandemic procedures, some of which could underlie personal injury claims, alleged civil rights violations or even a contract violation (which has a six-year statute of limitations).[4]

In the body of New York case law involving personal injury, civil rights, and contract claims against public libraries, one can see an interesting pattern: sometimes public libraries are treated as government agencies, and sometimes, they are not.[5]  This is why public libraries are often required by their municipality to have their own insurance.  This also means that while they might be held to the document retention standards of municipal agencies, sometimes, they won't have the legal protections of one.

My concern was--and strongly remains--that a process of purging documents that could demonstrate use of and adherence to screening programs will only disadvantage a library, even if the lost record was properly disposed of under the LGS-1.[6]  There are reasons beyond required retention to keep those records.  And without a clear directive on retention, I think it is best that a library keep a close hold on them.

In closing

I am sure no public library that documents input from State Archives about the applicable retention period and then purges negative screens after 1 year will be met with a penalty from the State

But as you can see in "Reason 3," the State is not my primary concern. 

With the benefit of 5 additional months since my original answer, I will take advantage of this chance to refine it to revise my above-quoted statement and change it to:

"Even when we get clear requirements, I have to answer that retention of proof of screening should be permanent, or at least until your library's attorney has determined that any advantage to the library created by retention is past, and your library has determined they are of no historical significance."

Thank you very much to the member for giving me the opportunity to re-visit this issue and to offer this updated (and hopefully improved) guidance.  I am sorry to cause you more use of storage room, but gratified to have the chance to offer this analysis!

 

Afternote:  Below are the relevant excerpts from LGS-1 792 and 802:

792 CO2 508, MU1 472, MI1 409

Results of screening programs, except lead poisoning

a          Summary reports on screening results: RETENTION: PERMANENT

b          Master index or listing of participants: RETENTION: 50 years

c          Positive report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 6 years, or 3 years after    individual attains age 18, whichever is longer

d          Negative report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 1 year

e          Log or other working record of screening and testing, used to compile statistics and other      data: RETENTION: 1 year

f           Anonymous H.I.V. test results and related records: RETENTION: 7 years

NOTE: Identifiable H.I.V. related records are covered by item nos. 743 and 745, and related laboratory records are covered by items in the Laboratory subsection.

 

802

Public health incident files, including records related to public health emergencies, communicable disease occurrences, and epidemics

a          Surveillance, investigation, and response records: RETENTION: 3 years after outbreak          has abated

 

...

NOTE: Appraise these records for historical significance prior to disposition. Records of unusual disease occurrences or epidemics may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.

 



[1] This "Ask the Lawyer," like the original, avoids the issue of whether a non-association library has decided it must follow its local government's safety plans, or generate its own, and under which order or mandate that safety plan and the library operates.  The last footnote will show you why!

[2] The Law that empowers the Archives to develop the LGS-1.

[3] FOIL and various claims of civil liability being the top reasons.

[4] What I said was: "Most people know that when you leave a paper trail, it can (with many exceptions) be used for—or against—you in court.  In the employee data arena, common uses of such evidence are labor law and civil rights claims."

[5] For a good case illustrating this, see the chain of cases here: Gilliard v. New York Pub. Library Sys., 597 F. Supp. 1069, 1074-75 (S.D.N.Y. 1984)  New York Public Library v. PERB, 45 A.D.2d 271, 274, 357 N.Y.S.2d 522 (1st Dept. 1974), aff'd, 37 N.Y.2d 752, 337 N.E.2d 136, 374 N.Y.S.2d 625 (1975); Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982)); Breytman v. New York Pub. Library, No, 05 Civ. 10453 (RMB) (FM), 2007 U.S. Dist. LEXIS 12769, 2007 WL 541693, at *2 (S.D.N.Y. Feb. 21, 2007),  Breytman v. New York Pub. Library, Dyckman Branch, 296 F. App'x 156 (2d Cir. 2008)

[6] Unless your library hasn't had a safety plan and hasn't been performing screenings, in which case, talk with your lawyer and consider the best way to mitigate your risks!

Tags: COVID-19, Emergency Response, Personnel Records, Records Management, Retention

Topic: Proof of vaccination from employees - 03/01/2021
We are a large (100-employee) school district public library. We are currently encouraging and edu...
Posted: Monday, March 1, 2021 Permalink

MEMBER QUESTION

We are a large (100-employee) school district public library. We are currently encouraging and educating employees on getting vaccinated, but not (yet) *requiring* vaccinations. We are providing employees with up to 4 hours of paid time off to obtain the vaccine voluntarily--if their vaccine appointment occurs during hours/days when they would otherwise be scheduled and working for us--and requiring proof of vaccination if this paid time off is used.

My question has to do with requiring or requesting proof of vaccination for employees who get vaccinated during their "off hours" and opt not to use this specific paid time off type. Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?

If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?

If we can obtain proof from everyone, I assume that this should be handled by HR (me) in the typical manner of any confidential medical information. But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers? They might wish to know details in order to schedule staff accordingly. But at the same time, I would be leery of divulging such information, out of concerns for maintaining employee confidentiality, possible discrimination by unwitting supervisors, etc. I might be more inclined to/comfortable with reporting general numbers--i.e., of 100 employees, 29 have been vaccinated to date--than to share employee-specific details, but am not sure if that would be helpful, or really what information *is* helpful for employers to track and report on internally where vaccination status of staff is concerned.

This is an invaluable service. Thank you for your consideration of my questions and for any guidance you can give!

WNYLRC ATTORNEY'S RESPONSE

Over and over again, I am floored by the care, tenacity, and creativity of the libraries determined to provide services in a time of pandemic.  New York's libraries just don't give up.  This question shows the mechanics of that fighting spirit.

So much of what we do in this pandemic comes back to why we are doing things in this pandemic.  For many libraries, the "why" of offering services is making sure their communities have lifelines to professionally curated information.

For this question, the "why" of asking for proof of vaccination is right there in the submission's core:

... so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?

Let's take that "direct threat" part first.

Back on March 19, 2020, we addressed a question about employer (library) liability due to Coronavirus exposure.  Although much has changed since that time (we have vaccines), the basic recipe for liability has not changed: liability happens when a person/entity owes a duty of care to a person, does not perform that duty, and the failure results in damage.

Because if this recipe, it is essential for libraries to always know what "duty of care" they owe their workers, and their community.

In a pandemic, evolving data and resulting best practices can change the "duty of care" rapidly (No masks? One mask? Two?).

While many resources are aggregating and pushing out up-to-the-minute guidance on "best practices," there are only three places libraries in the State of New York should be drawing their duty of care practices directly from: the New York State Department of Health ("NYSDOH"), the Centers for Disease Control ("CDC"), and the Occupational Hazard and Safety Administration ("OSHA").

Right now, as of this writing, OSHA's 1/29/2021 workplace guidance[1] for mitigating the impact of COVID-19 lists 16 "elements" of an effective COVID protection program.  Here is what OSHA recommends about using awareness of vaccination status of employees:

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

So right now, the "duty of care" set out by OSHA expressly excludes relying on vaccination status to reduce the spread of the virus.  Rather, it focuses on providing and insisting on appropriate PPE.

That said, in the same guidance, OSHA continues to recommend allowing employees who self-identify as medically vulnerable to swap tasks to limit risk:

Offer vulnerable workers duties that minimize their contact with customers and other workers (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.

This means if a person, relying on their vaccination status, decides to not self-identify as medically vulnerable, the employer is not advised to offer them contact-minimizing duties.

There are other steps on the current OSHA list that the member is already doing.  By enabling the use of PTO for vaccination, they are following the guidance in element "14":

Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.

This guidance, I imagine, will evolve.  That evolution should be reflected in revised Safety Plans.

And with that said, let's answer the member's specific questions:

Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
 

Based on the current OSHA guidance, along with guidance from the EEOC, the answer to this is "yes," and then "no."  Yes, an employer can ask for proof of vaccination (whether acquired on PTO or off-hours).[2]  No, right now, it should not be used for assignment of duties[3] or with the idea of reducing possible liability.

Here is the member's follow-up question:

If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?

Based on the current OSHA guidance, along with guidance from the EEOC, right now does not seem like the time to rely on vaccination status and data to make determinations about workplace risk management and safety.  So while requiring a notification of vaccination status may be permissible, it does not appear desirable if its purpose is to mitigate concerns about liability.

If, however, the motivation is to verify that the library is effectively encouraging the most employees possible to get vaccinated—simply for the employees' own personal health and safety—then yes, tracking those metrics (and any non-disability factors barring vaccinations) might not only be permissible, but desirable. In that case, the question is: does the information need to be tied directly to a particular employee, or is it just as meaningful if anonymous?

Which brings us to the member's last question:

But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers?...I would be leery of divulging such information, out of concerns for maintaining employee confidentiality...

This HR manager knows their stuff!

First, yes: no matter what, never create a risk of trampling on employees' privacy.

Second: Right now, it appears that sharing such information is unnecessary.

In a December 18th, 2020 "Ask the Lawyer," I stated that a vaccine requirement should only be implemented if it is part of a well-thought-out, board-approved Safety Plan.  Right now, it appears that no Safety Plan should rely on a vaccine requirement to reduce transmission of the virus.  With that in mind, right now, it appears the safest course of action –both COVID-wise, and legally—is to encourage vaccination, but not require it, and if a library tracks it, only do it for purposes of encouraging more employee vaccinations (or finding out you've hit close to 100%).

Of course, here we are on February 26, 2021.  If you are reading this in March, or April, or that sunny, warmer time in the future, May and beyond[4], this answer might no longer apply.

Keep checking with NYSDOH, with the CDC, and of course, with OSHA.  At some point, requiring vaccination—or allocating duties by vaccination status—could become something expected of an employer.  If that happens, a library's "duty of care" could change, altering the threshold for liability, and the answer to these questions could shift—some subtly, some not-so-subtly. 

But we have had a lot of twists and turns in the Pandemic.  That "shift" may or may not happen.[5]  As I often say at my office, "the only plan we can make is that the plan will change."  And how do you plan for that?  By doing what this member has done: keeping employees' well-being and safety at the forefront, and adapting every time the data and guidance change. 

If your library does that, you'll be as safe as you can be.  And mitigate your liability.

 

Thank you for a thoughtful question.

 



[1] Posted as of February 26, 2021 at https://www.osha.gov/coronavirus/safework.

[2] This answer is found on the EEOC site at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws as of 2/26/2021.  "K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20) No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  ...  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA."

[3] Remember, if the employee uses vaccination status to self-identify as vulnerable, such information can be considered by the library reactively (and confidentially).  For more on that, see the "Ask the Lawyer" from January 19, 2021.

[4] Garden time!  Can you tell I can't wait to get into the dirt?  It always feels so distant, this time of year.

[5] As OSHA says, more research is required.

Tags: COVID-19, COVID-19 Vaccine, Emergency Response, Employee Rights, Policy, Public Health, Public Libraries

Topic: Removal of Trustee From Board - 2/19/2021
Our board meetings are now 100% remote, and one trustee has failed to attend every session since t...
Posted: Friday, February 19, 2021 Permalink

MEMBER QUESTION

Our board meetings are now 100% remote, and one trustee has failed to attend every session since the start of the pandemic.  How can our board address that, if we know the move to virtual meetings (unfamiliarity with Zoom, bad internet, etc.) is the reason for the absence?  Is removal an option?

WNYLRC ATTORNEY'S RESPONSE

Earlier this week I was having a conversation with Brian, one of my paralegals, about the challenges we—our office and our clients—are facing due to the pandemic.  The conversation ranged from the personal (Brian is a musician whose band hasn't been able to play; my father-in-law is in the hospital and we can't go see him), to the professional (how to handle a contract breached because people can’t gather to do the work).  We concluded, in a very non-scientific way, that everything—whether it used to be easy, or was only a little bit difficult—is now "at least 30% harder" than before.[1]

On the flip side, later that day, I spoke via Zoom with a friend about how the increased reliance on Zoom, FB Live, and other virtual fora has done wonders for democracy.  "People are going to meetings they could never get to before," said my friend. "People who would never have had time to get to City Hall, or would have faced actual physical barriers to getting in a building,[2] are now able to attend."  And I optimistically thought: Cool...one thing that isn't 30% harder.

But these current times are not kind to optimists, and this question shows that, for some, even the Zoom-ification of democracy might make life at least 30% harder. 

And with that harsh reality established, let's take a look at the legal considerations of this question.

I.  Meetings during COVID

As "Ask the Lawyer" has addressed a few times[3] since the onset of NY's response to the pandemic,[4] chartered libraries are obligated to conduct their board meetings in compliance with the "Open Meetings Law (the “OML”). When New York went into social-distancing mode, the requirements of that law were modified by Executive Order to allow people to attend remotely, or through a blend of in-person and remote solutions.[5]

The New York Committee on Open Government (the "COOG") addressed some of the practical considerations of these modifications in guidance issued on August 20, 2020.  In that opinion, the COOG stated that if a body subject to the OML resumed meeting in person while the executive orders allowing the modifications were effective, a remote attendance alternative must be provided.[6]  As of this writing, modification is good through February 26, 2021.

 

II.  Attendance as a Trustee During COVID

The Executive Orders and COOG guidance clearly require enabling attendance through remote measures.  What the executive orders and COOG[7] guidance are silent on is the scenario posed by the member: if a library board and community have transitioned to meeting 100% virtually, and one trustee, due to the technology, isn't able to attend, is the board able to address that under the law?[8]

I have found no guidance precisely on point, but below is my legal analysis, and what I hope will be helpful guidance.

 

III.  Analysis

Library trustee service is governed by the laws of New York and a library's enabling legislation, charter, bylaws, and policies (in that order).  Aside from customized provisions in a charter, bylaws or policy, the law has two means of addressing serial trustee absence:

Means #1: "Unexcused Absence"

Per Section 226(4) of the Education Law,[9] trustees who are absent for three consecutive meetings without a "satisfactory excuse" for missing the meeting are "deemed to have resigned."  That is why, when a trustee lets a board know that they are unable to attend a meeting (virtual or otherwise), and they don’t show up, they are noted on the minutes as "excused," since to do otherwise could put the trustee on a path of resignation-by-law.[10]

Many NY library bylaws have this language in them, but it is not required...since it's in the law.  But what isn't in the law is what a board can regard as a "satisfactory" excuse. Is the excuse of a trustee who can't attend remotely, due entirely to technology, "acceptable"?  Only a board can say.  In a very rural community, it might be.  In a highly wired urban area with free wi-fi, where a trustee could perhaps even borrow some library technology to attend the meeting, it might not. So long as the reason is not discriminatory,[11] and not contrary to the bylaws or being unfairly applied, a board has some discretion in what type of reason they are "satisfied" by.

But I can say this: if the absences aren't noted as "unexcused" on the board minutes, a board should not contemplate this as a basis for implied resignation, since the law is clear that this must be based on absence that is unexcused.

Means #2: "Neglect of Duty"

The other statutory basis for removal of a trustee is found in Section 226 (8) of the Education Law: "Removals and Suspensions,” which states that a board may:

“Remove or suspend from office by a vote of a majority of the entire board any trustee, officer or employee engaged under special contract, on examination and due proof of the truth of a written complaint by any trustee, of misconduct, incapacity or neglect of duty; provided, that at least one week’s previous notice of the proposed action shall have been given to the accused and to each trustee."

As you can see, this section (a provision often replicated in library bylaws) creates a more intricate process than Section 226(4): it requires a written complaint, advance notice, and a majority vote of trustees to confirm a removal. 

To use this provision to address nothing more than repeated absence due to technical issues is probably overkill, unless the board finds that the mounting excuses—while perhaps initially acceptable—are causing real harm to the library or the operations of the board.  Before resorting to this step, it is always good for a board president or other leader to have a conversation with a board member and ask if they would like to offer their resignation (for some, this request may come as a relief).[12]

That said, a "neglect of duty" removal doesn't have to be hostile.  It can simply state that a trustee has failed to attend X number of meetings, has been unable to fulfill their duty as a trustee, and that to ensure the board has the benefit of a fully participating body, the board must consider removal. Give proper notice of the “complaint,” make sure the trustee has a chance to be heard, and vote.

 

IV.  Guidance

So: Is removal an option?

Yes, removal is an option, but as can be seen, when considering such removal, a board should pay close attention to the documentation that it is basing its decision upon.

I am very glad the member who submitted this question is being so thoughtful about this.  It is clear from the law, the pandemic-related Executive Orders, and the COOG guidance, that it is the public policy of the State of New York to encourage attendance and access to library trustee meetings, even during difficult times. 

While trustees have a different set of rights and obligations than the general public, an effort to orchestrate meetings to be free of pandemic-created impediments to trustee participation is clearly within the spirit, if not the letter of the law. To that end, if a library is open and if it has a Safety Plan that could allow a capacity-limited physical component of a virtual board meeting (perhaps set up in the room where the trustees used to meet, if possible under the Safety Plan), it is worth considering allowing trustees to attend in that manner—even if the rest of the trustees appear virtually. 

But to be clear: that is not what the law requires.  And if everything feels at least 30% harder these days, every library needs every trustee to be giving 100%.  So, if steps need to be taken to ensure a board has its full capacity of engaged trustees, just double-check your bylaws and documentation, and do what's best for the library.

Thanks for a difficult but very important question.

 



[1] I have heard people used "B.P." as in, "Before Pandemic."  "Pre-COVID" and "pre-pandemic" are also used.  I have floated "ante-Corona," because it sounds so grandiose, but I can't get it to stick.

[2] My friend is an architect, so they tend to see the world in design terms.

[4] "P-Day?" 

[5] The latest extension of this modification is valid until February 26, 2021 per Executive Order 202.92.

[6] What the Executive Director wrote was: "In my opinion, if a public body can possibly anticipate that any persons who may wish to attend a meeting governed by the provisions of the Open Meetings Law cannot be safely physically accommodated in the proposed meeting location ... that public body is required to simulcast to the public, by either video or audio means, the proceedings of the meeting as they are occurring so that all members of the public who wish to “attend” may do so."

[7] Full disclosure: this acronym is a constant test of my maturity level.

[8] For purposes of this scenario, I am accepting the premise that not even attendance via LAN line is possible; something that is certainly feasible in our cord-cutting, cell-reliant society.  Further, I have never seen bylaws that require a trustee to own a computer, or even a phone (you usually just have to be 18 and live in the area of service!).

[9] "If any trustee shall fail to attend three consecutive meetings without excuse accepted as satisfactory by the trustees, he shall be deemed to have resigned, and the vacancy shall be filled."  Please pardon the implication by pronoun "he" that only a male trustee can be subject to this law; I don't write the law, I just research, construe, and quote it. 

[10] Short note for all you minute-takers out there: this is why noting those “excused” and “unexcused” absences is so important.

[11] For instance, if board meetings are always held on Friday night, and the board doesn't excuse the absence of someone who keeps the Jewish sabbath.

[12] I appreciate that if the trustee is truly inaccessible by computer/phone, this might be cumbersome.

Tags: Board of Trustees, COVID-19, Emergency Response

Topic: Requiring COVID Tests for Employees - 02/01/2021
Can an employer require a negative COVID test before an employee comes to work? We have discussed ...
Posted: Monday, February 1, 2021 Permalink

MEMBER QUESTION

Can an employer require a negative COVID test before an employee comes to work? We have discussed it on our [public library system] member directors list but have not come up with a clear yes or no answer.

WNYLRC ATTORNEY'S RESPONSE

Here's something positive and affirming I can say: it's possible that the members expressing different opinions on the member directors' list are actually all correct.

That’s because, while I can't give one "clear yes or no answer" to this question, I can give five...five answers based on different scenarios about the facts "before an employee comes to work," including their symptoms, COVID exposure, and the safety measures needed to reduce the risk of COVID transmission in their workplace.

Here the five scenarios are:

Scenario 1

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work,[1] if the employee reports symptoms as part of routine screening.[2]

 

Scenario 2

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work, if an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19.[3]

 

Scenario 3

No, an employer does not have to, and has no basis to, require a negative COVID test before an employee comes to work, if the employee is working 100% remotely at home or in a location not at all controlled or at the direction of the employer.[4]

 

Scenario 4

No, an employer may not require a negative COVID test before an employee comes to work, IF the employee has a medical basis to not be tested; without a negative test, however, if certain screening factors were tripped (such as those in item 2, above) the employer will have to enforce other prescribed measures to comply with state requirements and reduce the risk of transmission within the workplace, such as a mandatory quarantine.[5]

 

Scenario 5

Yes, an employer can require a negative COVID test before an employee comes to work, if an established safety plan based on applicable OHSA guidance and the employee's job duties warrant that level of caution.[6]

 

Conclusion

I am not surprised you were unable to find a clear answer from a single reliable source, as these five scenario-based answers had to be cobbled together from two separate documents from the New York State Department of Health, which when combined, require employers to:

"Implement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact[7] with confirmed or suspected COVID-19 case in past 14 days. Assessment responses must be reviewed every day and such review must be documented."

AND

"An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing." [emphasis added]

AND

"If an employee tests positive for COVID-19, regardless of whether the employee is symptomatic or asymptomatic, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic."

AND

"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."

AND

"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

"If an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19, the employee must be separated and sent home immediately and may return to work upon completing at least 10 days of isolation from the onset of symptoms OR upon receipt of a negative COVID-19 test result." [emphasis added]."

 

And there you have it. I am not sure if this will make things clearer, but hopefully I have added some clarity to the uncertainty. 

 

 



[1] In this case "work" means the "work site," as in an established office or location controlled by the employer where an employee will report to work, or a site they are directed to appear at.  For this question, "work site" does not mean a home office or other space the employer does not control/send the employee to.

[2] This answer is based on the combined effect of the New York State Department of Health requirements here and  here.

[3] This answer is based on based on the combined effect of the New York State Department of Health requirements here and here.

[4] I know I covered this in footnote #1, but it bears repeating: based on the published guidance, NY employers are required to conduct mandatory screenings to reduce the transmission of COVID in areas they are responsible for, and areas they serve as part of their work, but not an employee's home office.  Requiring a test when there is no logical nexus between the employer's obligations and the request for medical information runs the risk of an ADA violation (not a slam-dunk risk, but enough of a risk to make it a bad idea).

[5] This answer is based on the Americans with Disabilities Act; if an employee has a disability that means they cannot medically tolerate a test (I have not heard of this, but I imagine it is possible), they will have to provide an alternate means of ensuring safety if such an accommodation is reasonable.

[6] This answer is based on the needs of work places with the highest levels of risk and risk management. 

[7] "The New York State Department of Health considers a "close contact" to be "someone who was within 6 feet of an infected person for at least 10 minutes starting from 48 hours before illness onset until the time the person was isolated. The local health department should be contacted if the extent of contact between an individual and a person suspected or confirmed to have COVID-19 is unclear. "

 

Tags: ADA, COVID-19, Emergency Response, Employee Rights, Health Management, Management

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

MEMBER QUESTION

We are a private association library. There is a "difficult" patron who sits on a bench (almost everyday doing nothing but trying to talk to anyone nearby) which is immediately next to our front doors on library property. We are doing curbside pick-up so the staff places the library items immediately outside the front doors on a table. The patrons come to the table to pick them up. The "difficult" patron refuses to wear a mask no matter who asks and how many times he is asked. We recently found out that he was exposed to someone who has COVID. The police tried to offer a mask to this patron and he still refused. We were told to call the police if he returns. When he did, the police never came. This patron is a health hazard to the staff and our patrons. What else can we do?

WNYLRC ATTORNEY'S RESPONSE

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

Here is what else you can do:

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

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

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

Here are some possible revisions to accomplish this:

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

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

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

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

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

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

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

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

 



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

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

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

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

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

 

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

Topic: Open Meetings Law and COVID - 12/14/2020
A member of my board of trustees would like for us to meet in person. There would be 9 people in t...
Posted: Monday, December 14, 2020 Permalink

MEMBER QUESTION

A member of my board of trustees would like for us to meet in person. There would be 9 people in the room. They wanted to know if allowing the meeting to be simultaneously on Zoom would satisfy the requirements of open meetings law even though only one member of the public would be able to be physically present in order to stay under the 10-member cap for small gatherings.

WNYLRC ATTORNEY'S RESPONSE

Since the onset of the pandemic, we have had two questions about the impact of Executive Orders on the Open Meetings Law.

The first question, back in March 2020 (remember March 2020?  Ugh.), led to this advice:

... the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.

Of course, by Fall 2020, we all became experts at these modified proceedings, and were asking refined questions like:

How long does a library (public or association) or a cooperative public library system have to keep the recording of board or committee meetings?

(Answer: until transcribed.)

This brings us to December, 2020.

On December 2, 2020, the Governor issued Executive Order 202.79,[1] continuing the suspension and temporary modification of the Open Meetings Law through January 1, 2021.[2]  So here we are, still meeting under modified circumstances.[3]

Which brings us to the member's question:

[Does] allowing the meeting to be simultaneously on Zoom ... satisfy the requirements of open meetings law even though only one member of the public would be able to be physically present in order to stay under the 10-member cap for small gatherings[?]

Answer: Yes.

Here is why I can answer this question with one-word confidence.

Back in August, 2020 (remember August, 2020?  Slightly less "ugh.") the Executive Director of the State Committee on Open Government, realizing that different areas have different COVID numbers and are facing different Open Meetings Law compliance challenges, wrote in an Advisory Opinion:[4]

...if a public body is convening an essential meeting, the body must ensure that it adheres to social distancing, masking, and any other administration requirements, and if there is any question about whether it is able to maintain a safe space in which to hold an essential open meeting, it must provide a contemporaneous video or audio broadcast such that members of the public who cannot safely attend in person “ha[ve] the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

Further, the Advisory Opinion went on to emphasize that room capacity and safety concerns should not impede public access to an OML-accessible meeting. "[A] public body may not artificially limit attendance at its meetings – to do so would not be consistent with the requirements of the Open Meetings Law."

The solution posed in the question submitted by the member adequately addresses this concern.   By enabling observation and attendance via Zoom, the proceeding will be virtually accessible even though it has been physically convened.  The key is ensuring access at a time of modified operations.

And what do we do when Executive Order 202.72 expires?

We'll see in the New Year!

Thanks for a thoughtful question, I wish you a productive and safe meeting.



[1] https://www.governor.ny.gov/news/no-20279-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[2] If you'd like to follow the daisy-chain of executive orders on this, here goes: Executive Order 202.1 first suspended/modified the Open Meetings Law Requirements, and then Executive Orders 202.14, 202.28. 202.38, 202,48, 202.55, 202.60, 202.67, and now, 202.72, kept that suspension/modification going.

[3] There are several legal challenges under way, based on the ability of the Governor to continue the state of emergency and resulting Executive Orders.  I am not commenting on that.

[4] Found at https://www.dos.ny.gov/press/2020/Essential%20Meeting%20OML%20AO.pdf

Tags: Board of Trustees, COVID-19, Emergency Response, Executive Order, Open Meetings Law

Topic: Transcribing records under Open Meetings Law - 11/16/2020
Under the executive order, the modifications to Open Meetings Law meant we (I'm...
Posted: Monday, November 16, 2020 Permalink

MEMBER QUESTION

Under the executive order, the modifications to Open Meetings Law meant we (I'm asking for several libraries in our system) record our Board meetings.

How long does a library (public or association) or a cooperative public library system have to keep the recording of board or committee meetings ?  Looking at http://www.archives.nysed.gov/records/local-government-records-schedule-browse?combine=meeting+recording, it states:
 "Four months after the transcription or minutes have been created"

Transcribing could be challenging, particularly for smaller libraries, so we were relieved to read that once minutes were created, we might not have to transcribe (hopefully we are reading that correctly).

However - our question is about the placement of the word "or".  Is it:

Option 1: Once transcribed, keep for four months. Once minutes are created and accepted (which might be less than four months - in our case, it would be at the next board meeting), you can delete recording.
Option 2: Whether transcribed or minutes created, keep the recordings for four months. 

Under option 2, it seems like there is a higher standard for meetings.  Pre COVID, our board meetings would occur, open to the public but usually no public in attendance, and the only "evidence" of the meeting would be the minutes.  Now, we are required to keep the recording for at least four months - which isn't a huge hardship but curious about the rationale behind that.

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Before attempting to answer this one, my team and I looked to see if anyone else "out there" has tackled this question.

We scoured the usual places (NYS Empire Development's COVID site, Committee on Open Government, NY Archives, NYLA, etc.), but my staff and I didn't find anything right on point. That said, the COVID landscape changes fast, so please let us know if you find anything, and we'll post an update to this answer.

And with that shameless disclaim/plea on the record, here is my answer:

As I read it, the currently-governing Executive Order[1] requires an entity subject to the Open Meetings Law to keep the recordings until they have been transcribed—not just until the minutes have been created.

Here is my reasoning: Executive Order 202.1[2] changed the Open Meetings Law as follows:

...to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed. [emphasis added]

Although the normal application of the LGS-1 would allow for the recording to be erased upon creation of the minutes—just as the member points out—the Executive Order is an overlay that super-cedes (or at least, exceeds) normal record-keeping requirements.

I realize this means a library that can't afford to transcribe the recording any time soon will have to keep the audio around.  It's possible that the state, after considering the fiscal reality of the conditions the "later transcribed" condition imposes, may eventually tinker with the requirement, perhaps simply insisting the audio be retained for a certain time after the minutes are generated.[3]

I am leaning on the side of retention, and not taking the easy way out by swapping it out for creating minutes, because access to the process, in all its glory, is the default purpose of the law.  Further, Committee on Open Government Advisory Opinion has stated that while masks and social distancing remain requirements, entities subject to the Open Meetings Law must be making the proceedings contemporaneously available via audio or video[4].  So with all that, I have to err on the side of retention, access, and transparency.

Fortunately, digital sound file storage is not too costly these days.[5]

Thank you for a thoughtful question.



[2] Which as of this writing, is extended through December 3, 2020, by Executive Order #72, found on 11/17/20 at https://www.governor.ny.gov/news/no-20272-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[3] This sounds like a nice ask to go out from a library advocacy organization.   "Please, Mr. Governor, can you waive the estimated $[AMOUNT] in estimated transcription fees incurred the same year when many localities are taking COVID-induced hits to their budgets?"  I'd sign that letter in a heartbeat.

[5] Finding the budget to properly compensate qualified people to manage that storage is another question!

Tags: Board of Trustees, COVID-19, Emergency Response, Executive Order, Open Meetings Law, Retention, Streaming

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

MEMBER QUESTION

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

WNYLRC ATTORNEY'S RESPONSE

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

Are we permitted to make our own safety rules?

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

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

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

Why is that?

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

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

 

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

Screenshot of CDC mask guidance regarding the COVID-19 pandemic

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

66-3.2 Face-Coverings....

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

 

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

Screenshot of information from the REALM study regarding transmission concerns.

 

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

Screenshot from a library homepage regarding curbside pickup rules.

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

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

Thanks for an insightful question!



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

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

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

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

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

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

Topic: Template Facility Use Agreemnet - 9/29/2020
Can you provide a template facility use agreement for renting or allowing community groups to regu...
Posted: Tuesday, September 29, 2020 Permalink

MEMBER QUESTION

Can you provide a template facility use agreement for renting or allowing community groups to regularly use space in a public or association library?

WNYLRC ATTORNEY'S RESPONSE

Yes, I can!  But first, a few caveats:

  • Any template contract is just a starting point.  Use a lawyer to generate a version of this document customized to your library. 
  • For any Organization that wants to use your library for a high-risk event (sports, concert with stage or sound equipment, large event open to the public, routine presence of children), whenever possible, additional review for insurance concerns and premises liability is wise.
  • When filling this out, always make sure the nature of the Organization is confirmed (individual, DBA, LLC, NFP, corporation, etc.), and you have confirmed they exist as stated. 
  • If the form shows that an activity requiring a professional license is going to happen (haircuts, massage, tax prep, legal clinic) obtain a copy of the insurance coverage for the professional activity and make sure it names your Library.
  • No political events should occur unless it is confirmed the arrangements conform to IRS and NYS Charities guidance.
  • A copy of the signed contract should be kept for 7 years (because the statute of limitations to sue on a contract is 6 years). 

 

ABC Library

FACILITY USE CONTRACT

This contract for facility use is between the ABC Library (the "Library") and INSERT NAME ("Organization") an [insert type organization/individual] ("Organization") with an address of [INSERT], for temporary use of [INSERT ROOM# or Description] in the Library (the "Space").

Details of Temporary Use

 

Date(s) and time(s) of use

 

 

NOTE:  If use is routine ("Every Monday in 2020") note the routine

 

 

 

Purpose of use (the "Event/s").  Please describe the activity to be conducted while you are using the Space.

 

 

 

 

 

Estimated maximum attendees

 

 

 

Will you bring in any contractors or third parties under contract for this event?

 

If so, you must provide the Library with a copy of the contract and they must name the Library on their certificate of insurance.

 

 

 

Please list any special details

 

 

 

Person from Organization who will oversee Organization's use of the Space (must be present at all times) and their back-up person

 

Name:

Cell number:

E-mail:

 

Name:

Cell number:

E-mail:

 

[If applicable]

 

Rental Fee on a per-use basis

 

NOTE:  If the use is charitable and the fee is to be waived, the use must not involve any political activity as defined by the IRS.

 

 

 

[If applicable]

 

Fee is payable to [INSERT] and shall be paid by:

 

 

 

Will minors unaccompanied by parents/guardians be attending the event at the Space?

 

If yes: does Organization have a policy barring abuse of minors, and requiring instances of abuse of minors in connection with Organization's programs to be reported to law enforcement within 24 hours?

 

 

 

Is Organization a chapter or affiliate of a larger organization?

 

If so, include larger organization's name.

 

 

 

Will the event involve food or the creation of materials to dispose of?

 

If yes, what time will clean-up, including removal of all trash and recycling generated by the event, be completed?

 

 

 

Organization's Library Contact (the person who will help them with any questions and address any concerns)

 

 

Name:

Email:

Cell:


Library Mission and Terms of Use


The ABC Library's mission is [INSERT].

As part of its mission, the Library requires that all people on Library property abide by all the Library's policies.  In addition, while using the Space, Organization and any person at the Space in affiliation with Organization must at all times follow the below rules, and any reasonable request of any Library representative.

Rules include:

No harassing, abusive, or demeaning activity directed at any person or the Space.

No contact that violates any applicable law or regulation.

In the event of an emergency at the Library, Organization shall abide not only by the reasonable request of any Library representative, but also any first responder assisting with the emergency.

In the event of any injury to any person, or incident of property damage while the Space is in use, Organization will immediately notify the Library Contact listed in the chart above immediately.  In the event of a crime or medical emergency, call 911.

Aside from those attending the event(s) in the Space sponsored by Organization, no filming or taking pictures of any individual in the library (visitor or employee) is allowed, without their express permission.

After use, the Space will be restored to the condition it was in prior to Organization's use, by the Organization, unless otherwise specifically confirmed with the Library Contact.

Organization will not promote the event using the Library/Space as the location until this contract is fully signed and (if applicable) Organization has paid the applicable Rental Fee.

Drafting note: if the Library does not own the building, add any other rules based on requirements in the lease.

Violation of any rules may result in the termination of this Contract with no refund, and denial of future use.

Emergency Cancellation

This Contract guarantees that Library will reserve the Space for Organization as set forth in the "Details" section, above. However, in the event the Library or a related entity experiences an emergency which, in the sole determination of the Library, requires the cancellation of the use (including but not limited to condition at the facility, weather emergency, or event requiring Library's emergency use of the space), Library shall notify Organization as soon as possible, and work with Organization to refund the fee or determine a new date, whichever is preferable.

Indemnification
To the greatest extent allowed by law, Organization hereby agrees to indemnify and defend and hold harmless the Library, its Board of Trustees, employees, agents, and volunteers, from any and all causes of action, complaints, violations, and penalties, and shall pay the cost of defending same, as well as any related fines, penalties, and fees, including reasonable attorneys' fees, related to Organization's use of the Space, including conduct by any third party or contractor present at the Space as part of the Event/s.

Insurance
Organization shall provide insurance meeting the requirements shown in exhibit "A."

Drafting Note/Instruction: the person at the Library organizing the contract will either select the default insurance requirement, which is the conventional insurance demand, or it shall be determined that no insurance is required.  For organizations conducting routine meetings, and especially if children are served by the Organization, the library's lawyer, and/or your insurance carrier will almost always advise insurance be required. 

Person signing for Organization
The person signing on the line below on behalf of organization is at least 18 years of age and has the power to sign for the Organization.
 

Venue for Dispute
This contract and any related action shall be governed according to the laws of the state of New York, and Venue for any dispute shall be INSERT county, New York.

Accepted on behalf of the Library:___________________     on:___________

                              Print name:__________________

 

 

Accepted on behalf of the Organization:___________________          on:___________

                              Print name:________________________
 

Tags: Association Libraries, COVID-19, Emergency Response, Meeting Room Policy, Policy, Public Libraries, Template

Topic: Memorandum of Understanding for Municipal Libraries - 09/25/2020
I work with a number of municipal public libraries - some are village, others are town. Some libra...
Posted: Friday, September 25, 2020 Permalink

MEMBER QUESTION

I work with a number of municipal public libraries - some are village, others are town. Some libraries use their municipality's employee handbooks, payroll, services like snow blowing and building maintenance, and have the municipalities cut the checks.

It would be helpful to have a clear understanding that the libraries are not a department of the municipality and that the board of trustees is in charge of the library, hiring staff, evaluating staff, approving expenses, and have complete control of the budget.

It would also be helpful if there was a sample MOU that spells out the division of responsibilities clearly.

WNYLRC ATTORNEY'S RESPONSE

Many of the questions we get at "Ask the Lawyer"[1] relate to this concern.  As the priorities cited by the member suggest, the library-municipality relationship is a Big Issue.

I have worked with city, town, and village attorneys, in one way or another,[2] for most of my professional life. So I can understand why sometimes, if they are focusing on reducing liability or overhauling operations, a town board or a city mayor might be tempted to think of the library as "just another department."

But we know that is not the case.

With all that in mind, I am very grateful to have this opportunity to craft a pro-active answer to this issue.

I am going to let the requested sample Memorandum of Understanding—or "MOU"—do most of the talking on this topic.  For comments on why I have included certain things, you'll see footnotes and items in italics that should be removed from any final version (unless you have a really fun-loving and tolerant town attorney).

Caveats

Of course, with all things "template," this MOU should only serve as a boilerplate.

Further, libraries with very sensitive or less-than-ideal relationships with their municipalities might want to use this only as an internal guide for discussion.  It's not a fun fact, but it remains a fact that some municipal leaders could take a "request for clarity" as an act of aggression.

And as noted throughout, to the greatest degree possible, your library should consult their own attorney about the different considerations in this template.[3]  With that in mind, I hope this document is a useful starting place for that attorney, and I welcome calls from lawyers working with this document.[4]

And here we go:

USING THIS TEMPLATE:  Any guidance in italics, and the footnotes, should be removed before an MOU using this template is finalized.  If at all possible, the MOU and attachments should be reviewed by an attorney before signature.  Items in bold are non-negotiable; they are based on the law and are not subject to change.[5]

 

[PROPOSED] MEMORANDUM OF UNDERSTANDING

Between the [NAME] Library and the [MUNICIALITY]

This memorandum of understanding is between the [NAME] Library (the "Library") and the [INSERT NAME OF MUNICIPALITY] (["GOVERNMENT ENTITY" or "GE"][6]), which both serve the community of [INSERT NAME OF MUNICIPALITY] (the "Community").

This memorandum of understanding ("MOU") is entered into by the Library's Board of Trustees (the "Library Board") and the [AUTHORITY OF THE ENTITY[7]] ("[GE AUTHORITY]"[8]) and is intended to ensure clarity and unified purpose with regard to critical interdependencies between the Library and the GE.  Together, the Library and the [GE] are the "Parties" to this MOU.

As a living document this [first] version of the MOU sets forward both items of clarity, will be revisited by the Parties in the month of [INSERT] every [TIME SPAN[9]].  

Mission and Shared Purpose

The mission of the Library is [INSERT MISSION].

The mission of the [GE] is to [INSERT MISSION].

The Library and the [GE] share the mission-oriented purpose of serving the Community within the [GE] by [compose and insert "shared purpose"[10]]; this is their "Shared Purpose." 

 

The Parties

The Library is a public library chartered by the Regents of the New York State Education Department on [DATE], as shown in the most recent version of the Charter attached as "A" (the "Charter").[11]

As required by law, the Library is governed by a board whose authority is set by sections 255, 256, 260, and 226 of the New York Education Law, the Not-for-Profit Education Law, the Charter, and the bylaws of the library.  A copy of the most current bylaws of the Library is attached as "B."  

The [GE] is a Municipal Corporation incorporated under the laws of New York State in [YEAR]. 

As required by law, the [GE] is governed by [INSERT][12].

A copy of the [GE] Code (the "Code") may be found at [insert code link[13]]. 

[IF RELEVANT] The provision[s] of the Code pertaining to the Library are attached as "C."

 

The Relationship of the Parties

As a Regents- chartered entity, the Library is an independent corporation with the ability to own property, enter into contracts, employ a workforce, and maintain its own bank account for the management of library funds. 

Further, the Library is required by state law and regulation to employ adequate employees to staff the Library in fulfillment of its Plan of Service, which is attached as "D."[14]

Since the [GE] and the Library are two distinct entities, many of their operations occur independently of the other.  However, for the sake of their Shared Purpose, the leadership of the parties have determined that certain "Critical Interdependencies" are in the best interests of the Community.

These "Independent Operations" and "Critical Interdependencies" are itemized below, with comments or additional information in column 3.[15]

Operational item

 

Independent Operation or Critical Interdependency?

When possible, check your conclusion with your lawyer before making a final determination.

Important information or attachment

 

Ownership of Library Building

 

This should specify if the library or the municipality owns the structure housing the library. 

 

If the GE owns the structure but charges no rent (or $1), it is a "critical interdependency." 

If the library owns its premises, it is an "independent operation."

 

 

Attach a survey or schematic of the library's complete property as "F".[16]

 

Maintenance of Library: capital improvements

 

This should specify who takes the lead on capital projects and how the parties will work together for remodeling or building a new library.

 

 

 

By "take the lead," I mean: who signs the contracts for the work and manages the different factors in the capital project?

 

If the GE "takes the lead" on capital improvements, it is a "critical interdependency."  If the library takes the lead, it is an "independent operation."

 

 

 

 

The library should always have copies of warrantees and contracts related to capital improvements.

 

Maintenance of Library: emergency repair

 

This should specify what happens when a pipe bursts and you need to stop the water and fix the pipe, or who makes sure the elevator gets fixed promptly (we'll handle damage to library assets in another section).

 

 

If the GE is responsible for arranging emergency repair, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

 

This is a great place to list who to call in the event of a facilities emergency.

 

Maintenance of Library: landscaping and snow removal

 

This should specify if the library or the municipality does the work or contracts for it.

 

 

If the GE is responsible for external routine maintenance, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

This should establish not only the party responsible, but set the expectations for service (for instance, should the driveway be plowed before the employees arrive on a snowy day?  That sounds good to me).

 

If performed by a third party, the library should always have copies of contracts related to grounds maintenance, even if the contract is with the GE.

 

Maintenance of Library: routine cleaning

 

This should clarify the line between "routine" cleaning (like weekly vacuuming) and "non-routine cleaning" (like cleaning up when a printer cartridge breaks open near the rare book room), and specify if the library or the municipality does or contracts for the work.

 

 

If the GE is responsible for routine cleaning, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

If performed by a third party, the library should always have copies of contracts related to routine cleaning, even if the contract is with the GE.

 

Details such as when the cleaning is, and the levels of access of workers, are important to clarify.

 

Damage to library structure: insurance coverage

 

This should specify what insurance covers damage to library structure.

 

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library structure, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

Current insurance policy or amount determined for "self-insurance" by municipality is attached as "F."

 

Library Security Personnel

 

This should specify if the library or the municipality supplies any security personnel. 

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality, and clearly establish who is "in charge" of the security personnel (who tells them what to do).

 

 

Library Security System, including any cameras

 

This should establish who pays for, monitors, and owns the system and any content on it.

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality![17]

 

 

Insurance coverage for damage to library assets (collection, furniture, equipment)

 

This should specify what insurance covers damage to library assets (not the structure).  The type and amount of coverage should be assessed on an annual basis by the board of trustees.

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

To help with this item, a library should have an inventory of its assets. 

 

 

The board should always have a copy of the insurance policy covering the library assets, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

 

Current insurance policy is attached as "G."

 

Employees: who is the employer

 

 

The employer of the employees is the library, not the [GE].

 

 

 

This is not negotiable.

 

Employees: who processes payroll and tracks leave accruals[18]

 

 

If the GE issues the paychecks, it is a "critical interdependency." 

 

If the library runs its own payroll, it is an "independent operation."

 

 

Whatever entity (or third-party contractor) is doing this, it must be done properly and with proper retention of payroll records and paid time off accruals.

 

Employees: who administers benefits

 

 

If the library employees get benefits (health insurance, retirement) through the GE this is a "critical interdependency." 

 

If the library arranges its own benefits, it is an "independent operation."

 

 

Copies of Summary Plan Documents ("SPD's") or other benefit descriptions are attached as "H"

 

Employees: what coverage applies for workers' compensation, paid family medical leave, and disability?

 

 

If the library employees are covered through the GE, this is a "critical interdependency." 

 

If the library arranges its own coverage, it is an "independent operation."

 

 

This is another one to have absolute clarity on! 

 

Your library should have the most recent mandatory postings[19] up in an area accessible to employees, confirming this clarity.

 

Employees: what employee policies apply, and who is responsible for determining them

 

 

The employer of the employees is the library, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the board of trustees determines the employment policies.

 

 

 

Sexual harassment/civil rights complaints, whistleblower complaints, resolving conflict of interest matters

 

 

These complaints must always be managed by the Library Board per the relevant library policy.

 

 

 

Library Emergency Response Plan(s)

 

Optional but encouraged

 

 

The entity responsible for the library's response in an emergency is the Library Board, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the Library Board determines any emergency response-related policies.

 

 

 

Facility use policies

 

 

 

Regardless of whether the library owns the building, or is a "tenant," only the Library Board determines facility use policies of the library (for example, rental or free use of rooms and other library space).

 

 

A good facility use agreement establishes the rules of use, confirms if/how liability for the use is transferred (hold harmless, indemnification), and addresses if insurance is necessary.

 

Banking

 

Who hangs onto the money?[20]

 

 

 

Library funds are solely controlled by the library, regardless of where the funds are kept.

 

Even if the operational funds of the library are held by the GE, this "critical interdependency" should be confirmed as being in aid of separate and distinct library finances solely controlled by the Library Board.

 

 

Money can be a HUGE source of dysfunction between a library and its municipality.  Before picking any battles, the Treasurer, director, and board should have clarity about their expectations and goals for stewarding the funds of the library.  This is a good topic to stay in touch with your system, Library Development, and your lawyer on.

 

Fiscal controls (petty cash, cash handling policy, book-keeping, accounts receivable and payable, use of credit card, tracking restricted funds, tracking capital funds)

 

 

To the extent needed, and consistent with a public library boards autonomy over library finances, these policies are to be adopted by the Library Board.

 

 

Audit

 

Different libraries will have different audit obligations, but all are subject to audit by the New York State Comptroller.

 

Any audit of the library should be done with the awareness of the library board.

 

 

The last 10 years of audits should be accessible for review by the parties.

Procurement and disposal of library assets[21]

Although controlled to a certain extent by law, procurement and disposal of library assets are solely controlled by the Library Board.

 

 

 

Budget

 

 

The library budget is passed by the board.

 

 

 

Library System

 

 

The library board is the entity that decides to sign any Library System membership agreement.

 

 

A library facing a determination based on any of the factors in this chart should reach out to their System as soon as possible for assistance.  Although every system is different, they will be a critical ally in navigating these items.  Remember, you are not alone!

 

 

Custom factors special for your library

 

 

Every library is different.  Use this section to track custom factors that impact your library-municipality relationship.

 

There are so many cool, odd, special things out there in library world, I am only surprised when a day goes by and I haven't learned about a new one.

Directors and Officers insurance and/or indemnification of library trustees

If the GE provides coverage and/or indemnification[22], this is a "critical interdependency." 

 

If the library has its own policy, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library trustees and directors against assertions of liability in the course of their library duties.

 

Always.  This should not be left to chance.

 

Current insurance policy is attached as "I."

 

Acknowledged on behalf of the [NAME]Library on _______:

BY: _______________________________________________

 

Acknowledged on behalf of the [NAME of ENTITY] on _______:

BY:______________________________________________

 

 

Attachments:

A: Library Charter

B:  Library Bylaws

C:  Section of municipal code pertaining to library

D:  Library Plan of Service

E:  Survey or schematic of library property

F:  Current Insurance Policy (premises)

G:  Current Insurance Policy (assets)

H:  Benefit documents

I:   Current Insurance Policy ("Directors and Officers Insurance")



[2] My first experience with municipal law was when I worked for attorney Dan Seaman, who has served as the town attorney for many towns and villages in Niagara County, New York.  My former partner Daniel Shonn was the town attorney for Akron, NY, and I covered town meetings from time to time.  I worked closely with the Town of Lewiston and the City of Niagara Falls attorneys when I was the in-house counsel at Niagara University.  And lately, even though I love my city very much, I just can't stop suing Buffalo (on behalf of clients), so they are really getting to know me at the city law department.

[3] Critical difference between an "MOU" and a contract: an "MOU" is, by design, not intended to be enforceable-although it may recite items that are enforceable via other means (for instance, if they simply recite something that is mandatory under the Education Law, which this one will).  For libraries seeking to elevate an MOU to an enforceable agreement, it is best to work with a lawyer from the get-go.

[4] (716) 464-3386, or adams@losapllc.com.

[5] Any NY library system that wants a fillable version of this MOU Template can write to Jill@stephaniecoleadams.com

[6] For this item, you will select whatever type of entity you are working with: city, town, or village.  For this template, we're going to call it the "GE" (for "government entity"), although that will make it sound like you are trying to make them turn right in the 1800's.

[7] The authority entering into the MOU will vary depending on the entity type.

[8] This name will also be modified to reflect what applies to your municipality: Town Supervisor, Village Board, City Common Council, etc.

[9] This "time span" should be selected to ensure you never have a fresh board of trustees and municipal leaders who don't know how things need to function.

[10] A nice "shared purpose" might be "the service and betterment of those living in our community."  It's nice to revisit the "shared purpose" every now and again so leadership is invested in it and it doesn't get stale. 

[11] Make sure you use the most recent version of the Charter.  An updated copy can be obtained via a request to New York State Education Department, Division of Library Development.  If there is enabling legislation, attach that, too, since the legislation can impact some of the variables in the chart.

[12] This is whatever combination of leadership calls the shots for the municipality: town supervisor and board, etc.

[13] I am sure I don't need to tell a library audience that most municipalities have their codes online, but I just love footnotes.

[14] Yes!  This MOU will need a binder or a routinely updated database to hold all the attachments!  Don't you love it?

[15] From what I have seen—and at this point, it's a lot—every library working with a municipality handles this differently.  It's like a Myers-Briggs personality test...endless permutations, even within similar types.

[16] Knowing the exact physical footprint of the library is critical!  Among many other things, this is how you set the boundaries for the limit on things such as, for example, smoking near the property.

[17] This is critical for compliance and clarity about patron records under the New York Civil Procedure Laws and Rules (CPLR) 4509.

[18] A not-so-fun, but instructive, read on this topic is found in the NY State Comptroller Audit found here: https://www.osc.state.ny.us/sites/default/files/local-government/audits/2018-09/lgsa-audit-library-2018-brentwood.pdf

[19] A list and copies of most postings is here: https://labor.ny.gov/workerprotection/laborstandards/employer/posters.shtm

[20] Extensive information on this topic is found here: http://www.nysl.nysed.gov/libdev/trustees/handbook/pltreasurer.htm

[21] A good example of this is in Ask the Lawyer https://www.wnylrc.org/ask-the-lawyer/raqs/68

[22] "Indemnification" is when an organization defends a director, officer, or employee in a lawsuit (like a discrimination claim).

Tags: COVID-19, Emergency Response, Public Libraries, Memorandum of Understanding, Municipal Libraries

Topic: Public restroom availability in reopening - 9/16/2020
A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were...
Posted: Wednesday, September 16, 2020 Permalink

MEMBER QUESTION

A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were not kept locked, and were cleaned once a day by our building's maintenance person.

Both restrooms are ADA-compliant and include a changing table. We have already installed motion sensors on the toilets and sink and replaced the hot air dryer with paper towels. Currently, our building is only open to staff and they wipe down touched surfaces with cleaner after use, and initial that they have done so on a bathroom cleaning log as required by our Safety Plan.

As we edge toward reopening to the public, we have many questions around these restrooms. Should we lock the restrooms and require the public to ask for a key? Should we lock the restrooms to the public entirely? Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day? Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

WNYLRC ATTORNEY'S RESPONSE

Like many of you, I have had to tackle a lot of previously unaddressed conundrums since March of 2020.  Especially when it involved developing a Safety Plan, this "tackling" has required research, patience, a good sense of humor, and lots of flexibility.[1]

The issue of how to handle 1) newfound concerns regarding the sanitary conditions of workplace toilets; and 2) newfound concerns about sanitary conditions of toilets in public spaces, is one of the most high-stakes and complex.  It can cause a lot of anxiety.

When a matter makes me anxious, I resort to either exercise, or exacting linguistic specificity.  Since you don't come to "Ask the Lawyer" for workout tips[2], I will address this anxiety-provoking issue with exacting linguistic specificity, starting with the Occupational Safety and Health Administration (OSHA)'s definitions of the different terminology used for bathrooms[3]:


Personal service room, means a room used for activities not directly connected with the production or service function performed by the establishment. Such activities include, but are not limited to, first-aid, medical services, dressing, showering, toilet use, washing, and eating.

Toilet facility, means a fixture maintained within a toilet room for the purpose of defecation or urination, or both.

Toilet room, means a room maintained within or on the premises of any place of employment, containing toilet facilities for use by employees.

Urinal means a toilet facility maintained within a toilet room for the sole purpose of urination.

Water closet means a toilet facility maintained within a toilet room for the purpose of both defecation and urination and which is flushed with water.
 

Now, before we go further: a few words about OSHA.  Based on size, location, type, and a dozen other factors, there is no one-size-fits-all for OSHA compliance. But public employers (like many libraries) in NY are required to follow OSHA's standards for employee toilets[4], and non-public employers, whose bathroom-supplying obligations will change by site and size of the organization, can refer to those standards for inspiration.[5] And OSHA (along with the Center for Disease Control, or "CDC") is currently a New York State Department of Health (NYSDOH) go-to for COVID-related sanitization information. 

So with those three resources in mind (NYSDOH, CDC, and OSHA), let's address the member's questions:

QUESTION 1: Should we lock the restrooms to the public entirely?

The first question to address in this is not "should" the library lock the restrooms to the public entirely, but can it?

Any library considered a place of "public assembly,"[6] by state regulation, must have a bathroom open to the public.[7]  However, the definition of a "place of public assembly" expressly excludes public association and free libraries, so yes, and while a municipal library will have a few more hoops to jump through, an association library can decide to limit access by the public.

If your library isn't required to have a "toilet facility" accessible by the public[8], and the capacity of your library means the toilet facility can't be routinely cleaned per the NYSDOH's recommendations, it is worth considering reducing or shutting access down.[9]

 

QUESTION 2: Should we lock the restrooms and require the public to ask for a key?

If this would help monitor use so the bathroom can be cleaned on an as-needed basis per NYSDOH/CDC/OSHA recommendations, yes, that is a viable option, and can be included as part of a Safety Plan. 

Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day?

OSHA states: "Employers operating workplaces during the COVID-19 pandemic should continue routine cleaning and other housekeeping practices in any facilities that remain open to workers or others. Employers who need to clean and disinfect environments potentially contaminated with SARS-CoV-2 should use EPA-registered disinfectants with label claims to be effective against SARS-CoV-2."

Meanwhile, the Phase II Safety Plan template from New York State requires any library to: "Conduct regular cleaning and disinfection at least after every shift, daily, or more frequently as needed, and frequent cleaning and disinfection of shared objects (e.g. tools, machinery) and surfaces, as well as high transit areas, such as restrooms and common areas, must be completed."

So, although there is no mathematically determined heightened standard, these requirements show that routine disinfection should be based on frequency of use, and at a bare minimum, bathrooms should be disinfected at least "once per shift," and there should be a log to register each cleaning (just as the member described they are already doing).

 

QUESTION 3: Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

This is a tricky question.  "Requiring" non-janitorial staff to do a task not in their job description risks concerns with morale, operational consistency, and if there is a contract involved, compliance (this will vary from library to library, of course).  And if the cleaning supplies trip a person's health conditions, there might also be concerns with ADA. 

Because of this, like all aspects of the Safety Plan, the requirement to sanitize surfaces in the bathroom(s) must be planned carefully. 

That should start with an analysis of the toilet facility, just as the member asking this question has done.  Does it have one toilet or many?  Does it have touchless sinks or sinks with handles?  Is the tile in good condition, or is the grout failing?  In short, what does it take to sanitize your library's unique space effectively?

One you've done the analysis, select the right products from the EPA's list of products known to effectively combat COVID-19, and based on the instructions on the product, select the method of disinfection that meets the needs of your operation, including the frequency.  And once you have established the method and the frequency, the requirements for employee PPE and training are here: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html and they include a link to a pdf poster about safe disinfection of the work site: https://www.epa.gov/sites/production/files/2020-04/documents/disinfectants-onepager.pdf.

 

And finally, the last part of the member's submission: Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

This is a great summarizing statement, because as it hints, and as this answer reviews, not all "public" restrooms are actually required to be open to the public at all.  Once you have confirmed the requirements for your particular library, it's time to assess what you can do—and what your mission demands that you do.  If that means reducing toilet facility access to minimum required levels, so employee energy and your library's budget can focus on service to the public, make it so.  If that means re-allocating part of the budget to hire a contractor specifically to clean the bathrooms every four hours since your library knows public access is either required or essential, and your library isn't situated to add that to employees' job descriptions, do that.  And if that means employees are expected to take on new duties to effect routine sanitization, develop a well-thought-out rollout plan[10] before implementing that as an express job duty.[11]

But whatever you do with the restrooms, the key is to consistently document that your library is following the NYDSOH, CDC, and OSHA guidelines suited to its unique site, location, and identity.

Thank you for a great question and a great example of the care libraries are taking to stay open and safe for the public.

 

 



[1] One of my co-workers rejected my first idea for managing our narrow hallway in the office.  "I will not announcement my presence by yelling "Gang Way!", Cole."  We settled on a protocol of visual inspection, first.   Even when your name is over the door, a Safety Plan is a matter of give and take.

[2] That said, if you suffer from carpel tunnel or sore forearms from too much typing, put your hands down flat (palm side up), stand on your fingers/palms, and pull upwards for 1minute 3xday.  Changed my life. 

[3] The OSHA-specific information is aggregated at this link: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#restrooms

[4]  This standard is enforced by the New York State Department of Labor Public Employees Safety and Health Bureau (NYSDOL PES) for public employees.

[5] Further information on required numbers of toilets can be found here, but for the sake of brevity, I am not going to go there: https://www.dos.ny.gov/DCEA/pdf/TB-2011-BCNYS%20-%20Minimum%20Required%20Toilet%20Facilities%20Based%20on%20Occupancy.pdf

[6] Per New York State Labor Law, §2, a “Place of public assembly” shall include (1) a theatre, (2) moving picture house, (3) assembly halls maintained or leased for pecuniary gain where one hundred or more persons may assemble for amusement or recreation, except (a) halls owned by churches, religious organizations, granges, and public association and free libraries as defined by section two hundred fifty-three of the education law, and (b) hotels having fifty or more rooms. [emphasis added, note the exclusionary language].

[7] 12 NYCRR 36-2.8

[8] Be careful in this analysis; if possible, confirm any conclusion that you don't have to have a public bathroom with your local attorney, or the municipal building inspector.

[9] Just be mindful that General Business Law Section 492 requires any place of business with an employee bathroom to let a visitor use that bathroom if it is a medical necessity.  While your library might not be a "place of business" under that law, people with medical needs may have an expectation of access.  Be ready to be flexible if there is a medical need for a toilet facility.

[10] This could simply mean thinking the Safety Plan through, meeting with employees to make sure they are on board with it, and making sure every employee has clarity about safety.  It can also mean working with your civil service agency or local attorney, so any contractual aspects are properly considered.  Since these are tense times for employees, good planning and communication about job duties is essential.

[11] In many library environments, it will be fine to add sanitization as a "duty as assigned," but in other places (with detailed job descriptions, a union contract, or contracts or policies that could impact the "assignment") it will not.  This concern cannot be answered generally; it will vary from library to library.

Tags: COVID-19, Emergency Response, Public Libraries, Reopening policies

Topic: Temporary disuse of a meeting room - 8/26/2020
My library's reopening plan calls for not allowing group meetings/ programs for a time. The...
Posted: Wednesday, August 26, 2020 Permalink

MEMBER QUESTION

My library's reopening plan calls for not allowing group meetings/ programs for a time.

There is some concern for a BOT member as to if the library can legally do this. The concern is if a community group or club that regularly meets in the library were to want to meet again, could they challenge the library in regards to this issue? In a nutshell, the question is "Do we legally have the right to suspend and not allow all meeting room use as the library reopens?"

As library director my thought process is that as long as the policy is being equally and fairly enforced to everyone then there should not be an issue. This does beg the question however as to what may happen if the city, which owns the building calls "eminent domain" and quickly demands use of a meeting space they own in an emergency circumstance. This is rare but has happened a few times in the past.

Any input you have would be greatly appreciated.

WNYLRC ATTORNEY'S RESPONSE

I have been looking at some of my post-COVID "Ask the Lawyer" responses, and they are pretty grim.  Such serious writing.

Of course, these are serious days, and operating during COVID-19 is a serious topic.

But I have been on the lookout for a chance for some joy, if not some outright levity.  And finally, this question supplies one!

Why would a question about temporary disuse of a meeting room make me happy?  Well, as some of you may have noticed, very little gratifies me more than emphasizing a library's autonomy.[1]

So, hear me rejoice: Yes, your library has the right to disallow all meeting room use in the interest of safety!

And if that isn't joyful enough, get ready for more good news: this is true whether your library is a tenant or a landowner, a public library or an association library, a library in a big city or a library in a small rural village!

Why is that?  If a chartered library in New York has assessed its unique space, its unique operational capacity, and its unique ability to operate safely, and as a result has adopted a Safety Plan that does not allow meeting spaces or on-site programming, then...there will be no meeting use or on-site programming.  It's as simple as that.

Now, that said, can someone try and complain about it?  Sure.[2] Can a building owner (like a town or a landlord) try and over-ride it? Yes.[3]  Could a pre-COVID contract be implicated?[4]  Yes.  But as an autonomous entity governed by an independent board, can your library make a Safety Plan and stick to it?  Yes.

As it should be.

Of course, within that autonomy is the obligation to steward and utilize library assets responsibly, and in compliance with the law.[5]  This is why the member's point about uniform enforcement and clarity is so important.  If the access is restricted for the Book Club, it needs to be restricted for the Comic Book Club, and even for the Garden Club.[6]  But after ensuring basic fairness and compliant use of library resources, the baseline decision about what facilities to allow access to during the pandemic is in the hands of the library's board and director.  And as I have said in many of my recent answers: they must put safety first.

Only one thing remains to be said: despite my obvious relish for the task, I want to assure the reading public that I still did my homework for this reply.  As of this date,[7] the only court rulings in New York to address litigation or complaints about library access as impacted by COVID-19 are numerous claims about transmission concerns impeding access to a prison law library[8] (now, in that case, I can understand why someone would complain).  But I found nothing regarding action against public and association libraries due to COVID-induced closure, reduced operations, and impediments to general access.  Hopefully it stays that way.[9]

Thanks for a good question and for some time on the bright side.

 

 



[1] It gives me a very "we the people" thrill that no amount of election-year jitters can override.

[2] I am sure that by now (August 25, 2020), MANY of you have heard MANY complaints...complaints about masks violating the ADA, complaints about the Library being too open or too closed, complaints that your signage is in the wrong font, or perhaps complaints about the smell of your hand sanitizer being too fruity.  These days, people just need to complain about something—it helps us feel more in-control.  I know I directed a very strongly worded message to my local government regarding document retention policies after the repeal of Civil Rights Law 50-a; for about 10 minutes, I felt really in charge of my own destiny.

[3] This is why a lease, or at least an agreement with a municipality who may own the library building, is a good idea.  At the bare minimum, such a document should address security/confidentiality, insurance for loss, the protocol for an on-site slip-and-fall, and the process for planning capital improvements.

[4] For instance, a facility rental agreement.

[5] For instance, once your meeting room is again accessible to the public, you can't let a start-up business owner hold a pop-up retail stand there to turn a profit, since that would risk compliance with several laws and tax regulations.

[6] Comics are very cool, but obviously your library doesn't want to play favorites.  And just because the Garden Club shows up with trowels is no reason to give them special treatment.

[7] August 25, 2020.

[8] There are already over a dozen of these.  A typical case can be seen in Vogel v Ginty, 2020 US Dist LEXIS 148513 [SDNY Aug. 14, 2020, No. 20-CV-6349 (LLS)].

[9] It will be hard enough sorting out the impact on budgets and various regulatory requirements.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Meeting Room Policy, Policy, Reopening policies

Topic: What to do if an employee tests postive for COVID-19 - 8/21/2020
We got lucky: an employee, who was asymptomatic at work but tripped one of the screening factors r...
Posted: Friday, August 21, 2020 Permalink

MEMBER QUESTION

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!

WNYLRC ATTORNEY'S RESPONSE

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[1] 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”[2] 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[3] 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.

...[and]...

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[4] 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[5] 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:

  • Staggering shifts to limit "close or proximate contact," between people;
  • Creating and posting clear signage;
  • Consistently enforcing masking, cleaning, and social distancing practices

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 [6]:

"CHECKLIST FOR RESPONDING TO NOTICE OF COVID-19 EXPOSURE AT THE LIBRARY; TO BE USED IN CONJUCTION WITH UPDATED SAFETY PLAN"

  • However the library was notified of the potential close/proximate contact, obtain a copy of the notice in writing (or send a confirmation e-mail to the source);
  • As required by the most recent New York Forward Guidance, notify the library's local public health Department (both in person and in writing), and factor in their response[7];
  • As required by the most recent New York Forward Guidance and the library's Safety Plan, determine who (if anyone) else must be restricted from the workplace, for how long; and if any further testing must be required;
  • Ensure the library is taking steps to protect the privacy of any employees disclosing screening factors (like a high temperature);
  • Ensure the library is taking steps to assess if any employee must be given paid time off or will need assistance to claim short-term disability or Paid Family Leave Act benefits;
  • Generate a short statement reviewing the above check listed factors, summarizing what your library has done for each step, and make sure you retain copies of all documentation showing you completed these steps;
  • Once these actions are taken and these determinations are made, notify your Board of Trustees of the critical aspects of the situation, but take care to respect the privacy of employees.


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.

 



[1] 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.

[3] 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."

[4] This should NOT be happening!

[5] 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.

[6] 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.

[7] 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.

Tags: COVID-19, Emergency Response, Policy, Quarantine Leave, Safety, Public Health, Safety Plan

Topic: Asking COVID-19 symptomatic patrons to leave - 8/18/2020
In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask cust...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

In regards to COVID-19 when libraries do reopen, (and allow people in) is it advisable to ask customers to leave the public building if they are exhibiting any visible COVID symptoms? If so, are there benchmarks for how extreme symptoms should be or how policies should be worded? There are of course patron behavior policies in place allowing for the removal of anything disruptive, which can include noise or inappropriate behavior. There are some members of our leadership team who believe our safety reopening plan should include provision specifically mentioning symptoms of COVID-19 and the staff's/ library's right to remove them if symptoms are exhibited. There are other concerns that library staff are not medical professionals and we are not able to determine if a few sneezes and coughs are common colds, allergies or COVID. Attached is our library's current reopening plan.

WNYLRC ATTORNEY'S RESPONSE

As the member writes, it is very difficult to determine if some physical factors—coughing, a flush, seeming malaise—are in fact symptoms of COVID-19.  Confronting a patron with suspected symptoms can also lead to concerns impacting community relations, privacy, and the ADA.

A good Safety Plan addresses this concern, without requiring patrons[1] to be removed mid-visit from the library.

To position libraries to address the impact of patrons with suspected symptoms, New York's "Interim Guidance for Essential and Phase II Retail" (issued July 1, 2020)[2] states:

CDC guidelines on “Cleaning and Disinfecting Your Facility” if someone is suspected or confirmed to have COVID-19 are as follows:

  • Close off areas used by the person suspected or confirmed to have COVID-19 (Responsible Parties do not necessarily need to close operations, if they can close off the affected areas).
  • Open outside doors and windows to increase air circulation in the area.
  • Wait 24 hours before you clean or disinfect.
  • If 24 hours is not feasible, wait as long as possible.
  • Clean and disinfect all areas used by the person who is suspected or confirmed to have COVID19, such as offices, bathrooms, common areas, and shared equipment.
  • Once the area has been appropriately disinfected, it can be opened for use.
  • Employees without close or proximate contact with the person who is suspected or confirmed to have COVID-19 can return to the work area immediately after disinfection.  Refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure[3] for information on “close or proximate” contacts.  [4]
  • If more than seven days have passed since the person who is suspected or confirmed to have COVID-19 visited or used the retail location, additional cleaning and disinfection is not necessary, but routine cleaning and disinfection should continue.

[emphasis on "suspected" has been added]

In other words: your Safety Plan, as informed by the most recent guidelines, should leave nothing to chance.  By using this procedure, library staff are never put in the position of having to guess, ask, or consider if a patron's coughing, sneezing, or other behaviors are COVID-19...rather, the moment the possibility is "suspected," the Plan kicks into action.

Of course, if a patron is properly masked, some of the risk of exposure is limited, even if they are infected (this is why we wear masks and identify areas with six feet of clearance in the first place).  And if a patron removes their mask mid-visit, refuses to keep appropriate distance, or refuses to spray down equipment after using it,[5] THAT person can be asked to leave, simply as a matter of policy—whether they are exhibiting symptoms, or not.[6]

So to answer the question: no, it is not advisable to ask patrons to leave the public building if they are exhibiting any visible COVID symptoms, for exactly the reasons the member provides.[7]  Rather, it is required that your Safety Plan keep people distant from each other, and that the library be ready to address any real or suspected exposure as quickly and effectively as possible. 

That said, having signage that reads "Safety first!  Patrons who are concerned about transmission of germs can arrange curbside service by [INSERT]" is a great way to remind people that if they are having an "off" day, there are many ways to access the services of your library.

I wish you a strong and steady re-opening.



[1] This answer does not apply to employees and visitors like contractors, who must be screened.

[4] I note that the DOH's "Interim Guidelines" do not include guidance to staff with suspected (as opposed to confirmed) exposure.  If an employee feels they were exposed to a suspected case of COVID-19, however, that will impact their answers on their next daily screening, which will trip consideration of whether they can report to work.

[5] Or whatever other safety measures a library has identified.  It is inspiring to read the variety of tactics out there, as listed at https://www.nyla.org/covid-19-library-reopening-plan-database/?menukey=nyla.

[6] Another member raised this consideration in this "Ask the Lawyer" from earlier in July 2020: https://www.wnylrc.org/ask-the-lawyer/raqs/153

[7] Of course, if a patron is having a medical event and you have an immediate concern for their well-being, call 911.

Tags: ADA, COVID-19, Emergency Response, Policy, Privacy, Reopening policies, Work From Home, Public Health, Safety Plan

Topic: Working from home during reopening - 8/18/2020
I work at a public library that is gradually reopening to the public. We employ quite a few librar...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

I work at a public library that is gradually reopening to the public. We employ quite a few librarians who trend older and have underlying health conditions. Many of these staff have been working remotely for the past few months, but not necessarily on tasks essential to their positions. As we begin to recall employees to the physical worksite, some are requesting to continue working from home, and/or for indefinite relief from working directly with the public, because of their vulnerability to Covid-19 complications.

While we are working to accommodate our employees, we also realize that working directly with the public is an essential part of being a *public librarian*. So how can we effectively accommodate public librarians who are asking to *not* work with the public?

We have done this during our work-from-home phase, when our Library was required to remain closed. But I don't believe that we can sustain this over the longer term. At some point, we may have to hire people to fill the in-person needs of the Library, and won't have enough "at-home" work for existing staff to do.

Thank you for your guidance.

WNYLRC ATTORNEY'S RESPONSE

This is a heart-breaking question, and I am sure it has been a hard process to get to this phase in your operations and planning.

In the state of New York, it can be a violation of both state and federal law to deny a person an employment opportunity on the basis of age or disability.  However, when a person cannot perform their essential duties due to a health concern, and no reasonable accommodation can help them do so, that person may have to leave the position.

Which brings us to the member's question: "So how can we effectively accommodate public librarians who are asking to *not* work with the public?"
There is a lot of wiggle room in this type of question, because the answer will change from library to library, but that also makes it hard to answer generically. 

Since I can't give an answer, I can do the next best thing: an array of questions to help members assess their own library's response to this type of disability accommodation[1] request:

Consideration

Why this is important

Your answer:

 

Are the impacted employees Civil Service?

 

 

Any assessment of job duties, changes, and consideration of alternation of essential duties should be done with your Civil Service agency's input.

 

 

Does your library have to abide by the Americans with Disabilities Act, and if so, what are its precise obligations?

 

 

Precise ADA obligations change based on library type, size, location, and funding. 

 

This is a factor that should already be known and addressed in the library's policies or employee manual, or with input from your Civil Service agency.

 

 

Does your library have to abide by the New York State Human Rights Law?

 

 

Precise NYHRL obligations change based on library type, size, location, and funding.

 

This is a factor that should be known and addressed in the library's policies or employee manual or with input from your Civil Service agency.

 

 

Are the impacted employees governed by a collective bargaining agreement ("union contract")?

 

 

The union contract may control how employees’ duties may be assigned/re-assigned and offer additional protections and considerations.

 

 

Do you have a copy of each job description involved, and are those job descriptions current and accurate?

 

 

Before assessing if an employee can be granted a reasonable accommodation, or must leave their job due to disability, make sure their job duties and reporting structure are accurately set forth in their job description.

 

 

Looking at the job description, what are the elements that the employee is stating that they cannot perform due to medical factors?

 

 

This should be confirmed in writing between the library and the employee (and as needed, review with Civil Service).

 

 

What accommodations can allow the employee to still perform their essential function?  Can those accommodations be implemented by the library?

 

 

Isolating these factors, and confirming them with Civil Service when they impact job duties, will position the library to assess if accommodations (like not coming into close proximity with the public) is possible, and if so, if they are reasonable.

 

 

After considering its legal obligations, operational needs, and the specific request, can the library reasonably accommodate the request?

 

 

The answer may be "yes," or "no."  In the member's scenario, if an essential duty requires activity that, even with all applicable safety provisions, cannot be done by the employee due to a medical concern, the key question is: can the library accomplish the essential element?  As the member writes, that might be hard.

 

This is the part to review with your library's attorney, prior to acting on any determinations.

 

Look at the big picture, and plan accordingly. 

 

When the assessment/s is/are done, look at the overall impact.  How will this impact the Plan of Service?  Or employee morale?

Develop a plan to get any messaging right, while respecting employee privacy.

 

This is the part where you review the big picture with the board personnel committee, civil service agency, and/or attorney.  The goal is for directors to be empowered to make decisions about workforce matters, with appropriate support for the plans.

 

Effect decision-making.

 

Plan out any accommodations to ensure they are supported by your COVID-19 Safety Plan, and create a schedule for implementing any necessary workforce changes.  Make sure the plan makes room for communicating changes to employees, in a way that will build team cohesion.[2]

 

Generate documentation to show compliance with the plans.

I know no chart can take the place of a solid plan that considers the needs and resources of your library, the well-being and privacy of your employees, but hopefully this chart can help you develop one. Together with the more general guidance in an earlier answer, these are the fundamental steps to consider.

Thank you for being willing to pose a difficult question.  I wish your library well at this difficult time.



[1] The employee can call it whatever they want, but a request to change job duties on the basis of a medical condition (including the condition of having heightened vulnerability to infection) will generally be considered an accommodation request under the ADA or the New York State Human Rights Law.  Therefore, any library entertaining such a request should evaluate is as they would a disability accommodations request, which as stated in this answer, will vary from library to library, based on their policy (which should be based on the precise way the laws apply to that specific institution).

[2] Yes: It can be very tough to acknowledge someone is leaving, and then try to focus on "team cohesion."  And it can be doubly tough when a medical concern, and inability to offer an accommodation, leads someone to leave on disability (which of course is confidential, and cannot be shared by the library).  But at the same time, the right message can help with employee morale.  This is why strategizing with an HR professional or Personnel Committee Chair, to organize some talking points on those things, can be so important.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies

Topic: Board of Trustees Approval for Library Reopening Plans - 8/3/2020
Should a board of trustees vote on their institution’s COVID-19 Safety Plan?  Or should...
Posted: Monday, August 3, 2020 Permalink

MEMBER QUESTION

Should a board of trustees vote on their institution’s COVID-19 Safety Plan?  Or should the adoption of the Plan be left entirely to the institution’s director or executive director?

WNYLRC ATTORNEY'S RESPONSE

Who is “in charge” of a library’s safety plan--the trustees, or the director?

It’s tricky, but if you bear with me, you will get an answer.

When it comes to who is “in charge” at an organization, boards must respect the authority of those they employ to lead (the director).  At the same time, the organization, including the director, must be guided by the work of those fiduciaries ultimately responsible for it (the trustees).

This dynamic can play out in many ways, but in a healthy board-director dynamic, the board lives up to its responsibility as a fiduciary by honoring the authority of the director. So to assess a question like this, I start with the board’s responsibility…which is also the responsibility of the library.

What is the responsibility of a library open during COVID-19?  Here’s the lay of the land, straight from the “NY Forward Lookup Tool”:

Image is a screenshot from the NY Forward tool, with arrows pointing out the text for applicable guidelines. This text is linked below the image.

The “applicable guidelines”[1] I have so carefully underlined (as found July 6, 2020, at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/RetailMasterGuidance.pdf)  state, in relevant part:

The Responsible Parties – as defined below – are accountable for adhering to all local, state and federal requirements relative to retail business activities. …

The proprietor/operator… or another party as may be designated by the proprietor/operator (in either case, "the Responsible Parties"), shall be responsible for meeting these standards.”

As part of the “applicable guidelines”, the “Responsible Parties” must certify having read and understood the obligation of their institution to “operate in accordance with such guidance,” as shown here[2]:

Image is a screenshot with an arrow pointing to the italicized text mentioning the Responsible Parties. This text can be read on the NY Forward Applicable Guidelines page.

None of this expressly requires that the person signing the certification, or the developer of a Safety Plan, is any particular person or entity.  Rather, the “owner or agent” of the library (who could be an officer of the board with signing authority from the bylaws, the director, another employee, or even an attorney operating on instructions from the library/client) signs the certification, and at some point, they adopt a Safety Plan.  That’s it.

But while there is no prescribed process for the Safety Plan, a look at some of the things the Plan must address is instructive.  For instance, the above-linked guidance states:

Signage should be used to remind employees and customers to:

  • Cover their nose and mouth with a face covering when six feet of social distance cannot be maintained.
  • Properly store and, when necessary, discard PPE.
  • Adhere to physical distancing instructions.
  • Report symptoms of or exposure to COVID-19, and how they should do so.
  • Follow hand hygiene and cleaning and disinfection guidelines.
  • Follow appropriate respiratory hygiene and cough etiquette.

As I have written about elsewhere[3], the requirements listed above, among other things, become temporary modifications to a library’s Code of Conduct.  In order to enforce social distancing and use of PPE in the library as required by the State, a library must ultimately tie a patron’s failure to do so to its Code and process for restricting access to patrons.[4]  For that reason alone (and there are many, many others, including a Plan’s impact on conditions for employees, procurement practices, security procedures, budget, etc.), the board should be the entity that adopts the Plan.

This is not to say that a director with adequate experience to draft a library’s Safety Plan cannot be the primary author of the Plan.  In fact, the director (and other employees with high familiarity with certain operations) is likely the person best situated to envision adjusted floorplans, shift schedules, workflows, signage posting, employee temperature monitoring, and employee training methods (to name just a few), all of which must be addressed in the Safety Plan. 

But because of the many high-stakes areas a Safety Plan impacts, a library’s board should be the entity accountable for adopting it and ensuring it is updated at regular intervals.  On the flip side, after the Plan is adopted, the director will be the authority responsible for seeing that the Plan is followed.

The board has this accountability for passing the Plan because a COVID-19 Safety Plan is not just a tool for safety, but also a mechanism of legal compliance and risk management.  When you stop and think about it, most policies or plans that relate to safety, legal compliance, and risk management—things like workers’ compensation insurance policies, sexual harassment and civil rights policies, and fiscal controls policies—are all things that a board is ultimately accountable for.  While the director may have the authority to ensure compliance with them, they are adopted by a board. And that is as it should be.

Of course, it can be a challenge for a small board to meet as often as needed to keep a COVID-19 Safety Plan evolving in light of new research, evolving library operations, and on-the-ground improvements.[5]  For such situations, it is good to consider an approach like the one set out in the below template resolution:

BE IT RESOLVED that the board hereby adopts the Safety Plan considered at this meeting of DATE; and

BE IT FURTHER RESOLVED that the Plan be posted in the Library, as required by the Plan, within 24 hours of the passage of this Resolution; and

BE IT FURTHER RESOLVED that to ensure the Safety Plan is updated in a manner that is conducive to optimal operations of the Library, the Director, [in consultation with INSERT[6]] is authorized to update the Safety Plan as needed, consistent with CDC and OSHA guidelines, and shall present the current updated version then in effect at each subsequent meeting of the board, to be reviewed and ratified by same.

 

So, what is the answer to the member’s questions? 

There is no “right” answer to this, but lots of factors point to the board serving as a library’s COVID-19 Safety Plan’s ultimate authority.  That said, in passing such a plan, a board should draw from the experience, and support the executive authority, of the library’s director. 

Like all healthy board-director relationships, this approach requires listening, learning, a good sense of roles and boundaries, and mutual respect.  A tall order in frantic times, but one that good planning and careful consideration[7] can almost always bring about.

Thank you for an important question.

 



[1] You will no doubt be shocked to learn that my law school did not have a “graphic design” elective for marking up NY State pandemic policy documents.

[2] I imagine many directors and board members have gone through this triad of assurance many times, and are sick of it.

[4] While Executive Order 206.39 granted any business the right to refuse a person access if they are not wearing a mask (if they can medically tolerate one), I am not comfortable with any lingering consequences for refusal to wear a mask or otherwise abide by the safety plan unless they are tied to the due process in a Code of Conduct.

[5] Larger libraries will have already had a business continuity, disaster recovery, and perhaps even an all-hazards response plan in place.  The approach outlined in this answer is drafted with smaller libraries, who typically don’t have such deep resources, in mind.

[6] The option in brackets here is to allow revisions in consultation with some back-up for the director: a committee of the board, or the chair of the board, or an independent consultant as authorized by the board, or the local Health Department. 

[7] And frequent re-reads of the “Handbook for Library Trustees of New York State,” found at http://www.nysl.nysed.gov/libdev/trustees/handbook/.

Tags: COVID-19, Emergency Response, Reopening policies, Board of Trustees

Topic: Requirements for public access to SUNY libraries - 7/27/2020
[Submitted from a SUNY Library] (1) What are the requirements for a SUNY library to provide acce...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

[Submitted from a SUNY Library]

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?
(2) Are their specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?
(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?
(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

WNYLRC ATTORNEY'S RESPONSE

This is a deep array of questions, requiring a deep array of answers.

But let’s start with the basics.

There are 64 SUNY campuses, some with more than one library.

What’s cool about these libraries?  They aren’t just collections of books on a campus, but distinct entities within their institutions, governed by the body of laws that apply to all libraries in New York, as well as the law that is SUNY-library specific.

The “SUNY-library specific” law is Education Law 249-a, which states:

The state university trustees and the board of higher education of the city of New York are hereby authorized to establish such rules and regulations as may be necessary and appropriate to make provision for access and use by the residents of the state of the libraries and library facilities of the public institutions of higher education under their respective jurisdictions.

In other words: SUNY and CUNY have libraries, and the boards of SUNY and CUNY can set those libraries’ rules, including the rules governing access.

SUNY’s[1]  board has established “such rules” by, among other things, adopting a policy on “Public Access to SUNY Libraries[2]  which states:

It is the policy of the State University of New York (University) that the public is given access to University libraries insofar as possible. Since implementation of this policy has fiscal and administrative implications, campuses may extend the facilities of their libraries to the public whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.

 

What does this mean for public access to those libraries?

State law gives SUNY broad authority “to establish such rules…for access and use by the residents of the state.” SUNY then uses that authority to develop a policy requiring “that the public is given access to University libraries insofar as possible.”  BUT, after asserting that broad goal, SUNY allows individual campuses to tailor that access based on the “fiscal” and “administrative” considerations of individual institutions.  So while access to the public is the stated goal, the conditions for access are really up to the individual libraries (and the academic leadership they report to).

I tooled around a few SUNY library web sites (I couldn’t resist the Charles B. Sears Law Library at SUNY Buffalo, my alma mater), and each have their own unique conditions for giving the public access.  Some make it easier to find that information than others.  I saw a range of conditions for access…anecdotal evidence that the libraries are using the latitude granted to them by SUNY policy.

And with that background established, I’ll answer the questions.

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?

While the law only goes so far as to “authorize” SUNY to provide for public access, SUNY-wide policy is that “the public is given access to University libraries insofar as possible… whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.”

So my answer to the first question is: based on SUNY policy, public access to a SUNY library must be provided insofar as possible, provided the use by the public doesn’t interfere with the use of the students and faculty, and the burden of public use doesn’t throw off the budget.[3]

(2) Are there specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?

Absolutely, there are requirements and potential repercussions for access to libraries at state institutions.  I could write an entire book on them (and I bet someone has[4]), but here is my quick summary:

  • Requirement: develop budgets, staffing plans, and operational policies that ensure the public is given access to University libraries “insofar as possible.”
  • Requirement: in coordination with Campus Safety or Campus Police, develop a process to address the most serious public patron behavioral concerns. 
  • Requirement: develop a privacy policy regarding the rights students, employees, and public patrons have under CPLR 4509.
  • Repercussion: be ready to address civil rights concerns related to the library’s status as a public institution.

(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?

For readers not familiar with it, “Section 108” is the portion of the Copyright Act, which gives special exemptions from infringement to libraries and archives that are open to the public.

Section 108 does not go into great lengths regarding what the requirement “open to the public” means, but some insight can be gained from how it handles access to special collections closed to the general public; such collections qualify for Section 108’s protection so long as they are open “to other persons doing research in [that] specialized field.”  So it is clear that “open to the public” is not intended to be a carte blanche free-for-all.

The current pandemic and SUNY’s efforts to combat it will certainly impact SUNY libraries’ ability to be “open to the public.”  However, I feel confident writing my conclusion that any institution that temporarily restricts all patron access will not be found to have not meet the requirements of section 108.  And I feel just as confident saying that scheduled visits by appointment—if that is what a SUNY library needs to do to ensure safety—would not cause a 108 concern, either.[5]

That said, I cannot feel the same confidence for any Safety Plan that completely and utterly removes all public access.  Public access, even if severely restricted, must still be a component in order to meet the requirements of 108.

(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

Broadly and boldly speaking: yes.

BUT.

As discussed at the beginning of this answer, the law of the state of New York and the policies of SUNY give a great deal of latitude to libraries on a campus-by-campus basis.  Different campuses exercise this latitude in different ways.  This means that while the library in one SUNY location may be operating per a Safety Plan confirmed by a central coordinator, another library may be given a directive to develop their own. 

Or, as (former[6]) SUNY Chancellor Kristina M. Johnson put it:

We understand that…each of our campuses is a complex ecosystem with regular engagement with their respective surrounding communities.

Within those different plans will be different solutions for the safe operations of different sites.  Some of those plans will call for masks, because masks will be the only way the planned operations will be able to be conducted safely.  Other plans may only include modified operations that may be performed safely without masks.  And of course, any plan requiring a mask will include the proper ADA accommodations information for those who are not able to wear one.

While the country has watched as some people challenge the requirement to wear PPE on the basis of civil rights, a limited requirement to wear a certain type of protective gear for a narrowly tailored purpose with a general application is not likely to be found a violation of the First Amendment. But of course, when it comes to civil rights, the devil is often in the details.  If, for instance, only a certain type of facemask was required, and that facemask type did not work well with a certain body type, or the need to wear a hijab, it is possible that could trigger an ADA or First Amendment claim. The guidance being assembled by the Center for Disease Control and the Occupational Safety and Health Administration takes into account the diversity of bodies and identities that Safety Plans will need to serve. By using properly credentialed resources and thinking through Safety Plans from multiple perspectives, a SUNY library should be positioned to deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety.

Last note

In responding to these questions, I am mindful that general legal services are provided to SUNY institutions through the office of the NY State Attorney General, and many campuses have lawyers on staff. Therefore, to the greatest extent possible, any SUNY library, department, center, school, college or university finalizing a Safety Plan should take care that whenever possible, coordinated guidance from SUNY’s recognized legal advisers is incorporated. (Very often, this will have been done at the level where the institution is planning its emergency response.)  I am always gratified when a SUNY lawyer, or another lawyer, calls me to discuss my work for libraries, and I welcome those calls.[7]

As of this date (June 26, 2020) I have found no publicly accessible model safety plan or guidance from SUNY HQ with regard to the resumption of operations.  Rather, the SUNY page for COVID questions shows that the State University of New York is very much in an assessment and response mode, and the SUNY Library Consortium’s page shows that plans are still in development.[8] I am sure that will change as the situation evolves, and I encourage people to be attentive to that page, and their own administrations, for further specific guidance.   At the same time, since no one knows a library better than the librarians who works at it, I encourage pro-active assessment and formulation of access and safety plans by library leadership, informed by the people who work and study there.

This guidance was assembled directly from available materials, and while not legal advice, it is consistent with published SUNY materials and the law.  I hope it is helpful to SUNY libraries as you consider the continuation of your operations.

Thank you for a great array of thoughtful questions. I wish our SUNY libraries much health and strength for the days ahead.

    



[1] The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.

[2] Found on June 8, 2020 at https://www.suny.edu/sunypp/documents.cfm?doc_id=330 and not to be confused with the “Open Access To State University Libraries” policy found that same day at https://www.suny.edu/sunypp/documents.cfm?doc_id=329.

[3] Having sat through budget meetings of all types as a student leader, journalist, academic administrator, and lawyer, I realize that the words “fiscal” and “mission” can be applied to many divergent ends.  Let’s not go there, this is about the law.

[4] I will ask my paralegal Jill to research this question and alert me if she finds one.  If she does, we’ll update this footnote.  Otherwise, you’ll know we didn’t find one.

[5] I am punting on the very practical consideration of the recent Supreme Court ruling regarding sovereign immunity, which arguably positions SUNY to not be very concerned about qualifying for protection under 108.  I am punting because, as the court put it, I am sure SUNY does not want to be seen as a “serial infringer.”  For more on that, see https://www.scotusblog.com/case-files/cases/allen-v-cooper/

[7] (716) 464-3386

[8] This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.

Tags: Academic Libraries, COVID-19, Emergency Response, Reopening policies, Section 108, Public Access, SUNY

Topic: Employee Identity Theft - 7/27/2020
I was recently contacted by my employer stating that someone had applied for unemployment benefits...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

I was recently contacted by my employer stating that someone had applied for unemployment benefits using my Social Security number name and Job title. My employer notified me by email to be aware of this but stated that they conducted a security audit and found that there was no breach on their end and that the matter was currently being investigated by the department of labor and FBI. What responsibilities does an employer have to the employee when this happens? What should the employee do?

WNYLRC ATTORNEY'S RESPONSE

For this answer, we are again joined by Jessica Keltz, associate attorney at the Law Office of Stephanie Adams, PLLC.

This question takes us back to the SHIELD Act. Last discussed by Ask The Lawyer at the end of 2019 (https://www.wnylrc.org/ask-the-lawyer/raqs/100). The SHIELD Act requires businesses (and other entities that conduct business, such as, yes, libraries) that collect personal data to institute compliance measures including assessing security risks, implementing new data security measures, and securely destroying private information when it is no longer needed for business purposes.

We will take the two questions separately.

First, what responsibilities does an employer have to the employee when this happens?

If your library is not part of a large institution such as a university or a hospital, its compliance responsibilities likely fall under the SHIELD Act requirements for “small businesses.”

The act’s definition of a “small business” is:

"Small business" shall mean any person or business with (i) fewer than fifty employees; (ii) less than three million dollars in gross annual revenue in each of the last three fiscal years; or (iii) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles.

Compliance requirements for small businesses under the SHIELD Act are more generalized; they simply need to ensure that their data security safeguards are appropriate for their business’ size, complexity, scope of activities, and the sensitivity of the information the business handles.  Within those guidelines, libraries that fall under the “small business” requirements should have a data breach plan.

The event that the member described is certainly cause to be concerned that a data breach had occurred, and the library should have a plan to address it. What does addressing it look like? The most important elements are being able to evaluate whether a breach occurred (which it seems like the employer was able to do), and disclosing to the potential victim that a breach may have occurred (which the employer definitely did).

If the library had found that a data breach did occur, staff or a contract data security expert should re-evaluate the library’s security protocols to make sure to prevent the problem in the future; but in this case, as a breach did not occur, this may not be necessary.

In the case of a data breach or potential data breach (and this falls under “potential”), the employer is also required to disclose the concern to any resident of New York state whose private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization. By notifying you this event occurred, the employer has complied with the requirement.

Meanwhile, what can an employee in this position do?

First: as soon as possible, the employee should consider involving their own attorney.  The risks posed by this situation are too critical.  For those who can’t afford an attorney, contact the local county bar association to learn about pro bono assistance in your region.

Second, assuming the employer has complied with their obligations under the SHIELD Act, since this involved a fraudulent claim for unemployment from the New York State Department of Labor (“NYSDOL”), the employee should work with the NYSDOL to learn all they can about the incident.

This starts with contacting NYSDOL’s fraud department at https://labor.ny.gov/agencyinfo/uifraud.shtm, to see what they can share about the abuse of your personal information.  Armed with whatever other information is gathered from NYSDOL, the employee (or their attorney) can then look at their own credit history and other uses of their identity for potential breaches (social media and e-mail accounts).

While this is going on, be extra-wary of any calls, emails, or other contact requesting any personal information.  Always require people to call back or write to you with any out-of-the-blue-seeming inquiry.  Make sure the people close to you know you are on heightened alert.  Consider changing all passwords (just make sure you keep a good record of the changes in a very secure place).

The Federal Trade Commission offers guidelines on when and how to place a “fraud alert” on your credit, to stop new accounts from being opened using your name and information.

https://www.consumer.ftc.gov/articles/0275-place-fraud-alert.  Any person who learns their information may have been illegally accessed should also request a free credit history from one of the three main credit bureaus, and review their credit report for any unexpected checks or accounts. Depending on what you find when you do so, consider freezing your credit and reporting the theft of your identity to the Federal Trade Commission.

And finally, if any employee has reason to believe their employer or a contract provider is at fault for a breach (even if the employer or contract provider denies it) it is even more critical that the employee consult their own attorney as soon as possible.  There are too many variables to give general guidance on this, but broadly speaking, the more you have at stake (employment-related information, direct deposit information, health and benefit-related information, and of course, a potential dispute with an employer) the more important it is to act quickly.

The scenario the member describes is nerve-wracking, and the member was right to reach out about it. Don’t go it alone!

Tags: COVID-19, Emergency Response, Security Breach, SHIELD Act, Employee Rights, Identity Theft

Topic: Digitizing legally owned choral music - 7/24/2020
Is it permissible to make digital copies of choral music that is legally owned by the institution ...
Posted: Friday, July 24, 2020 Permalink

MEMBER QUESTION

Is it permissible to make digital copies of choral music that is legally owned by the institution to students in choral and instrumental ensembles? Some students may be studying remotely and mailing physical copies may result in lost or non-returned copies.

WNYLRC ATTORNEY'S RESPONSE

There are four ways it can be permissible:

1.  Check the license[1] from the publisher and see if the purchase of the physical copies came with any digitization/duplication permission.  You'd be surprised how many rights you buy (or don't buy) when you make that hard copy purchase.  Publishers take a variety of approaches on this, and an individual publisher's permissions may change from work-to-work, so confirm (or rule out) this approach for each work.

2.  If the license does not allow making digital copies, contact the publisher, and see if it can be expanded.  Publishers are now getting many requests like this and may be ready with a simple (and affordable) solution.

3.  I am not a fan of them (they are as outdated and as risky as the Ford Pinto), but the "CONTU" guidelines speak to this issue.  I am including the relevant guidelines, as presented in Copyright Office Circular 21, under this answer.  If one of your precise needs fits one of the "permissible uses" listed in Circular 21, you are all set.

4.  Speaking of CONTU, the first "permissible use" listed in the guidelines may help you out here, with a slight twist on your scenario.  In the event that the physical copies listed in the question are mailed out and not returned as feared, the guidelines allow for emergency copying after the fact (of course, they also require that at some point, you purchase more physical copies, but at least you can get the copies to the students).

 

Those are my four solutions, based on conventional approaches and current case law.

I'll also throw out a "fifth option" based on a slightly different approach, which, depending on some precise facts, could work for faculty teaching choral classes:

 

The 110 Solution

Copyright Section 110 allows an academic choral group (if meeting as part of a class) to display "a work in an amount comparable to that which is typically displayed in the course of a live classroom session," during an online class/rehearsal.

How can that help with the member's scenario?

Let's say I am in a class that is working up an a capella performance of "36 Chambers,"[2] as arranged by the composers of the original work.[3]

If the class was still meeting physically, Copyright Section 110(a) would allow us to perform the song and to display the music on the in-class smart board.  In the online environment, the same performance and display could happen via the internet, as allowed by 110(b) (the "TEACH Act")—again, so long as only the amount "typically" displayed in class was shown. 

Whether in-person or online, the rehearsal would include review of the different parts for bass, tenor, alto and soprano,[4] with the relevant music displayed on the screen.  While an academic institution can't tell people to take screen shots of the music displayed for rehearsal purposes, students who want to snap screenshots of a class to take notes is a fact of modern-day academia.  If a student who was told to purchase a copy of their part uses this method to ensure they are practicing on an incremental basis, that's out of the school's control, and the student can make their own claim to fair use.

This type of solution should never be used as a deliberate alternative to the purchase of individual copies.  But so long as the display is incremental and truly a part of the in-class experience, it is a viable option.

I wish all music faculty approaching the Fall 2020 semester many good performances, whether virtual, or face-to-face.  These are tough days for people who love to sing, who enjoy the community of a choir, and who need to hone their vocal art in collaboration with others.  Hunting for music should not add to the burden, and with a few tricks and an awareness of the limits of the law, it doesn't have to.

------------------------

Guidelines for Educational Uses of Music

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223.

The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

Reproduction of Copyrighted Works

Permissible Uses

1 Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2 For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section¹, movement or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil.

3 Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

4 A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

5 A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

Prohibitions

1 Copying to create or replace or substitute for anthologies, compilations or collective works.

2 Copying of or from works intended to be “consumable” in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

3 Copying for the purpose of performance, except as in A(1) above.

4 Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.

5 Copying without inclusion of the copyright notice which appears on the printed copy. (iv)

Discussion of Guidelines

The Committee appreciates and commends the efforts and the cooperative and reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American Association of University Professors and of the Association of American Law Schools have written to the Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level. However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated “purpose of the … guidelines is to state the minimum and not the maximum standards of educational fair use” and that the agreement acknowledges “there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use.” The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the purpose of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months

 



[1] Checking a license is not an exact science.  Some publisher's use a catch-all that is included on their invoices.  Others put the information right on the music.  Others like to make you really hunt for it, but it is usually part of the sale transaction.  This is why, when making a purchase of music, it is good to take a screen shot or save the paperwork related to the purchase.

[2] Note: To my knowledge this work does not exist, but it is on my wish list of music to hear.  I love it when genres collide.

[3] This new version would be a "derivative work" based on the original, and have its own copyright protection as a musical composition.

[4] We have reached the limit of my choral knowledge.  Is there separate sheet music for mezzo-soprano and counter-tenor?  Probably.  I am sorry, I quit choir in 7th grade.

Tags: CONTU, Copyright, Digitization and Copyright, Licensing, Music, Section 110, COVID-19, Emergency Response

Topic: Fair Use in Uncertain Times - 7/17/2020
In the spring, it was clear academic libraries providing digital resources were in a state of emer...
Posted: Friday, July 17, 2020 Permalink

MEMBER QUESTION

In the spring, it was clear academic libraries providing digital resources were in a state of emergency and fair use restrictions were loosened.

This fall, we are asked to plan for face to face learning, but we may be asked to turn on a dime and provide digital resources overnight if a student or faculty member in a course is unable to attend class.

We are hearing mixed messages from other institutions. What is our situation today, emergency or status quo?

Thank you

WNYLRC ATTORNEY'S RESPONSE

Before I answer this question, I do have to emphasize: as I wrote here, fair use was not modified during the height of the initial pandemic closures.  Further, there is no case law or regulatory guidance indicating things will be any different if we have to return to the level of lockdown experienced this Spring. 

There is no "emergency use" exception to copyright law--even under fair use.  That said, this is an excellent question that captures the experience of working in higher education right now, and I do have a few helpful things to offer in response.

Higher education libraries trying to support another immediate conversion from in-person to online learning should consider doing the following:

1.  Work with their academic and IT colleagues to optimize their institution's rights under the TEACH Act, which under the right conditions, allows the digital transmission of copyright-protected material.

"Optimizing," in this case, means presenting otherwise inaccessible materials in class, so the TEACH Act's[1] exception infringement can be fully used, while making the most of the medium.  For example, if a history class would typically read a chapter of a book before class, then meet in person to discuss the chapter, perhaps now a part of the online class could consist of the faculty member or students reading the chapter aloud,[2] and the class using an asynchronous message board to discuss it.

This method requires faculty to be flexible, but it is one way to ensure access for all, when all else fails.

 

2.  Unite with other institutions to re-negotiate the terms of digital licenses from academic publishers.

I cannot stress this one enough.  Academic libraries must unite, must negotiate hard, and must threaten to boycott any publisher that refuses to offer a reasonable price for students to access content online.  This was critical before COVID, and it is even more critical now.[3]

 

3.  Much easier, and even cooler than #2: plan to collaborate with students' local libraries to ensure students can take full advantage of Copyright Section 108's support of access via inter-library loan.

What?

That's right.  Let's say I am a college student from Littleplace, NY.   Suddenly, it's October and I have to vacate my dorm room at ABC College, due to a local surge in COVID-19.  To be ready for the rest of my (now online) classes, I need 12 articles, a textbook that costs $500 (that I was previously sharing with two friends), and a course pak I forgot in my dorm.

So long as I have access to the list of materials, I can head over to the Littleplace Library (or call them) and work to find the materials I need.  Using its rights under Section 108 of the Copyright Code, the Littleplace Library can get me a copy of the articles...possibly even in collaboration with the ABC library, or another academic institution with the right subscription.

In my observation, this is a very under-discussed option.  Remember, your students have a right to work with their local library to get copies under a combination of 108 and (on the part of the student) fair use.  The key is having the course materials listed in such a way, that the local college or public library can easily (and quickly) help them.

This, by the way, is one of the many reasons it is critical to keep open every single one of our small and mid-size libraries in small towns and villages across the country.[4]

 

4.  Use your institution's compliance with NY's Textbook Access Act.

This is another "if you have time" one. 

In New York, all higher education institutions and publishers must follow this law[5]:

Textbooks shall be sold in the same manner as ordered by such faculty member or entity in charge of selecting textbooks for courses. In the event such product is unavailable as ordered, the bookstore, faculty, and relevant publisher shall work together to provide the best possible substitute that most closely matches the requested item or items, and the publisher shall make available the price of such substitute or substitutes readily available.

This clause has always been applied to combat predatory pricing for course materials, but lends itself to the current situation, too.  If the instructor was given a discount digital copy, the students should be able to buy one, too.

 

5.  Take some time to examine the latest ruling on academic e-reserves and fair use, so you feel comfortable making the call when you can post things on e-reserve without permission.[6]  Fair use has not been "loosened," but it still has lots of room.  The full document has been updated to "Ask the Lawyer" as "Becker Ruling 2020."  It's boring,[7] but very instructive.

My best wishes for a supported and supportive prep for the Fall semester.



[1]The full requirements of this law can be found at: https://www.law.cornell.edu/uscode/text/17/110

[2] This would also allow presentation through adaptive technology, for those who need it per ADA.

[3] I understand if you are too busy coming up with an "August Staffing Plan" and trying to figure out where to get 10 gallons of hand sanitizer to organize the revolution.  But this really is important.

[4] As if I have to sell most of you on the importance of funding libraries.

[6] Always use your institution's fair use form to record your conclusion.

[7] The helpful stuff starts on page 6.

Tags: COVID-19, Digital Access, E-Books and Audiobooks, Emergency Response, Academic Libraries

Topic: Alternative, fair use solutions for when you can't host a virtual read-aloud - 7/14/2020
For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front ...
Posted: Tuesday, July 14, 2020 Permalink

MEMBER QUESTION

For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front lawn and took turns reading 6-7 books. Due to COVID, we can't hold this event in person this year. Our thought it that we could do it virtually - and instead of reading an entire book, we would ask readers to read the first chapter from one of their favorite books. They would film themselves reading (or we would film them) and then we would post the clip on our YouTube channel. One clip a day would be posted - for a total of 24 clips.

Our questions center around copyright infringement and fair use. Could we host such an event? Would this qualify under educational fair use guidelines?
Could we leave the videos up indefinitely -- or would it be better to have a specific time period and then they disappear?

Any guidance - even if it's a "don't do it!" would be helpful!

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Since the onset of pandemic restrictions, "Ask the Lawyer" has written a lot on different variations of this topic.[1]

Since I am tired of being the party pooper on this issue,[2] I am offering up something new.  Here it is:

Don't do it...unless you make it something new.

What do I mean by "something new"?  I mean a use that is so clever, so additive, that even though it uses a copyright-protected work, it creates a work with independent meaning.

Examples of this "something new" are:

  • Extensive[3] "color commentary" combined with the reading.
  • Replacing the characters in the books with people in your town to make a witty commentary about town life.[4]
  • Combining the reading with a special talent, such as reading each sentence of a travel book while traveling to a different yoga position, or reading a baking scene in a book while making a cake. 
  • Humorous juxtaposition, like reading the first scene of Moby Dick[5] while fishing, or reading a book about puppies to your cat.[6]

Despite all the wishful writing out there, the cloud of the pandemic did not bring us the silver lining of automatic expansion of fair use.  That said, it hasn't diminished fair use.  So, if your library:

  • Isn't using the event as a fund-raiser;
  • Is using the event to educate and engage the public;
  • Requires readers to not use the entire work; and
  • Requires a transformative use, like the examples given above...

...[7] there is a strong chance your event can go on as (virtually) planned. [8]

Good luck and happy reading!

 



[2] The answer is "Don't do it, unless you have permission or the work is in the public domain."

[3] "Extensive" means incisive comments at least every paragraph.

[4] Since I don't want to help you avoid a copyright claim only to wind up with a defamation law suit, if you do this, avoid using books that take deep and honest looks at human nature (No William Faulkner, no Maya Angelou, and certainly no Zadie Smith).  Use sunny books that make the best of things!

 

[5] This is a bad example because Moby Dick is in the public domain.  Which reminds me: you can also try using books in the public domain (published before 1924).

[6] Puppies and a cat?! 50% chance to go viral on day 1. 

[7] Which just happen to line up with the four factors of fair use.

[8] Just in case this suggestion appeals to readers, here is some suggested event recruitment text, based on the member's question:

It's time for our annual 24 hour read-aloud!  Usually, we have people camped on the front lawn but due to our work this year to keep everyone healthy, we can't hold this event in person.  Instead, we will do it virtually.

Here are the details for this year's readers: instead of reading an entire book, please work with us to film you reading from the first chapter from one of your favorite books, along with comments or a special related activity by you!  The final product will help us celebrate reading AND the personalities in our town.  Be as creative as you like, but the added content has to be related somehow to the book.

 

Tags: Copyright, COVID-19, Emergency Response, Fair Use, Library Programming and Events, Online Programming

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

MEMBER QUESTION

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

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

Are we in the wrong to require masks?

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

Estimated time of activity: 1.5 hours.

Step 1

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

 

Step 2

Look at your PMEL. 

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

Or

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

 

Step 3

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

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

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

 

Step 4

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

 

Step 5

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

Why?

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

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

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

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

 

Step 6

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

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

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

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

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

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

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

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

 

Step 7: Feeling Confident

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

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

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

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

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

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

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

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

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

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

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

[emphasis added]

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

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

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

Thank you for an important question.



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

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

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

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

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

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

Topic: Does a library need a disclaimer stating it is not responsible for COVID-19 cases? - 6/25/2020
I understand that the libraries need a disclaimer stating that the library is not responsible shou...
Posted: Thursday, June 25, 2020 Permalink

MEMBER QUESTION

I understand that the libraries need a disclaimer stating that the library is not responsible should a visitor or patron become ill with COVID-19. Is this true, and if so, do you have suggestions on wording for this disclaimer?
 

Thank you

WNYLRC ATTORNEY'S RESPONSE

I appreciate this question, because it gives me a chance to make an important clarification:

As they prepare to re-open and re-welcome the public for summer 2020, libraries and other chartered entities DO NOT need “disclaimers”[1] to combat alleged responsibility for employee and patron cases of COVID-19. Instead, they need:

  • a WRITTEN SAFETY PLAN (customized to their own operations);
  • SIGNAGE and other documentation to enforce the Plan; and
  • Clear and consistent ENFORCEMENT.

Why is that?  Because limiting liability for the transmission of disease is not the same as limiting liability for riding a roller coaster.

Liability based on infection/illness is based on either 1) the intentional act of deliberately spreading infection (for instance, someone with COVID-19 deliberately spitting on someone); or 2) the negligent act of not doing what you were reasonably supposed to do, and thus causing a heightened risk of harm (for instance, someone mistakenly using the wrong product to clean a high-traffic surface).

When it comes to a person allegedly getting COVID at a library, no disclaimer will reduce liability for either type of action. What is needed, instead, is to show that the library has taken all reasonable steps to protect the safety of employees and the public.  That is the key to limiting liability.

This can only be done via a Safety Plan based on guidance from NYSDOH, OSHA and the CDC.   Since a Plan is only good if the planners follow it, signage[2] promoting adherence to the Plan, through consistent and well-documented enforcement, is also critical.

I am emphasizing a written Safety Plan not only because the State is requiring them, but because in New York, disclaimers, waivers, and “At Your Own Risk” notices are only effective under precise circumstances. 

For instance, an insurance carrier can refuse coverage based on a properly worded disclaimer.  A sky-diving company can avoid liability for a customer’s heart attack with a waiver.  But the insurance disclaimer still won’t void the liability of the insured, and the waiver won’t work if the damage is caused by a sky-diving instructor’s willful action.   The enforceability of such documents depends on the circumstances.

What DOES guard against liability for transmission of disease is showing that a library 1) identified appropriate safety practices confirmed by a recognized authority; 2) uniformly and consistently enforced those practices.  In that approach, signage alerting people to the risk of transmission (and requiring adherence to rules to minimize it), is part of that “uniform and consistent” enforcement.

Which brings me to the hard truth I have to emphasize:

If your library can’t 1) identify appropriate safety practices confirmed by a recognized authority as reducing transmission of COVID-19; and can’t 2) uniformly and consistently enforce those practices, your library should not operate.  No waiver or legal document will protect it if basic safety practices are not identified and enforced.

Now, all that said, as part of its “consistent and uniform enforcement” of safety practices, a library could decide to ask each patron to review and sign a document like this:

The ABC library is now open for [insert limited services].  To ensure consistent use of appropriate safety practices, please review and agree to the following practices before entering, which will apply until the board determines otherwise:

I agree to wear a mask at all times in the library; if I am medically unable to wear a mask, I will call the library at [##########] to arrange reasonable accommodations.

I will sanitize my hands prior to entry at the station provided by the library.

I will avoid touching my face and mask while in the library's premises.

I will abide by any other safety-related requests by library staff.

I will [insert your library’s specific requirements, as stated in the Safety Plan].

I understand that these practices are currently the rules of the library and they are being enforced both for my safety and that of the public as currently advised by the Center for Disease Control.

Signed: ________________________

 

This type of signed “acknowledgement” is one way to show that people have been notified that these are unusual times in the library, and that entering the premises may bring more than the usual risk.  That said, this approach is not an “acceptance of risk” document, disclaimer, or liability waiver.  For the reasons stated above, those approaches really aren’t what’s needed for the simple resumption of library activity.  What is needed is a Safety Plan.

Of course, if your library decides that aside from resuming some modified operations, it would like to host some inherently hazardous activities (riding a mechanical bull,[3] digging a community garden with heavy equipment, printing Jarts on the 3-D printer) a waiver is a good idea.  But for resumption of activities while the country is still fighting COVID-19, your Safety Plan is the key.

Thanks for a great question.

 



[1] In New York, a “disclaimer” is a formal written document or policy clause used by an insurance company to deny coverage for liability.  As an example, see §3420 of the New York Insurance Law.

[2] By “signage,” I mean any documentation in the library, or on the Internet, that encourages Safety Plan compliance.

[3] I had to draft a waiver for a mechanical bull once.  Sometimes being a lawyer is fun!

Tags: COVID-19, Disclaimers, Emergency Response

Topic: Rights for music during graduation ceremonies - 6/15/2020
We have received several questions about setting graduation ceremonies to music and stre...
Posted: Monday, June 15, 2020 Permalink

MEMBER QUESTION

We have received several questions about setting graduation ceremonies to music and streaming them or recording them and sharing them with students. What are the laws surrounding this? There seems to be a lot of misinformation out there. Below is a question I received:

The slideshow for the [public] high school graduation is complete. [T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible? If copyright comes into play and we can't there will be no music added to the show. Please advise, We have viewed many other shows from various high schools and at the end of the show it simply states "we do not have rights to this music."

WNYLRC ATTORNEY'S RESPONSE

The need to migrate ceremonies online has created a tsunami of copyright concerns.  What is a ceremony without the right music?  But this question pertains specifically to high school graduations for public schools, so we’ll confine it to those institutions.

Readers, I have to be real with you: a newly minted Supreme Court Case, Allen v. Cooper[1], means public high schools (which are arms of the state) are arguably immune from liability for copyright infringement.  In that case, the court invalidated the “Copyright Remedy Clarification Act (“CRCA”), which had expressly removed state’s “sovereign immunity” to a copyright suit. So on a very pragmatic level, some public schools, colleges, and universities may be adding that to their risk assessment of questions like this.

But professional educators likely don’t want to do the wrong thing simply because they are arguably immune from being punished for it.  As Justice Kagan, writing in Allen and quoting an expert witness put it: “what State, after all, would “want [] to get a reputation as a copyright pirate?”   So we’ll proceed just as the member’s question suggests: that they want to do the right thing.

With that in mind, here is my answer to the question: “[T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible?

My first bit of guidance is to check the school district’s license with either ASCAP or BMI (this is the license that covers permission to play music at a high school dance). It may be that some streaming rights got thrown into your public performance license. This isn't typical, but you never know, and if you have the right clause in your contract your problem could be solved right away (and in fact, your problem never existed).

If there isn't a contract that already gives your school permission to use the song(s) as the member describes, your school needs permission. This can be done through any number of licensing agencies.

As but one example, the music to “High School Musical” is available for licensed streaming through the Harry Fox Agency:

Permissions from the website Songfile for "High School Musical"
 

(As can be seen, your school could even decide to use the karaoke version.)

The bad news is that it’s sort of a pain to obtain the license; you have to register and there is a fee.  Further information can be found at the link here: https://secure.harryfox.com/songfile/faq.jsp#faq2.

[NOTE: since a school district is one legal entity, it is also good to check and see if the district itself has an account already.  Signing up for a service like this does not need to be done on a school-by-school basis. Of course, this brings us to school policy and procurement issues, and for that, I refer to the attorneys serving the BOCES that serves your school!]

I hope the red tape doesn’t get in the way of the students having a good ceremony.  They have been through enough this semester.



[1] You can find the full text of the case and some commentary here: https://www.scotusblog.com/case-files/cases/allen-v-cooper/

 

Tags: Copyright, COVID-19, Emergency Response, Music, Streaming

Topic: Contact tracing and privacy in libraries - 5/28/2020
Given libraries are preparing plans to reopen, I am looking for a follow up to the 3/19/2020 quest...
Posted: Thursday, May 28, 2020 Permalink

MEMBER QUESTION

Given libraries are preparing plans to reopen, I am looking for a follow up to the 3/19/2020 question posted to Ask The Lawyer pertaining to being informed that an individual who has been confirmed to have COVID visited one of our libraries. (participated in a program).

With the new tracing protocols (COVID-19) required by Re-Open New York, what, if any, impact will there be on CPLR 4509? Will libraries be required to provide information and if so, to what extent? Currently we require a judicial subpoena in order to provide any information regarding a patron - including identifying if a patron has been in the library.

Your guidance is much appreciated.


 

WNYLRC ATTORNEY'S RESPONSE

The short answer

This answer is being written on May 28th, 2020.

At this time, in addition to Executive Order 202 issued on March 7, 2020 and declaring a state of emergency in New York through September 7th, 2020, there are 30 Executive Orders.

These Executive Orders create temporary modifications to a wide and ever-increasing array of state law and regulations. They have impacted elections, public health practices, landlord tenant relations, and countless operations of the New York State justice system.

However, as of this date, there has been no modification of section 4509 of the state Civil Procedure Law and Rules (“CPLR”), which, with only very limited exceptions, bars third-party access to a user’s library records.

Therefore, at this time, any library receiving a request from a third party for confidential library records, even if in relation to contract tracing efforts, should follow the same procedure they do for all other third-party requests: require a subpoena or judicial order.

 

The same answer, but with more information and analysis

I am grateful to the member for posing this question, because not only is it important to have clarity on this precise issue, it is important for information management professionals across the state of New York, including some of New York's most trusted information professionals — librarians — to be thinking about the impact and finer points of contact tracing.

So what is “contact tracing”?

The Centers for Disease Control describes contract tracing this way on their current COVID-19 response page[1]:

In contact tracing, public health staff work with a patient to help them recall everyone with whom they have had close contact during the timeframe while they may have been infectious.  Public health staff then warn these exposed individuals (contacts) of their potential exposure as rapidly and sensitively as possible.

After declaring COVID-19 a “communicable disease” as defined by the state’s Public Health Law, New York began using contact tracing to combat COVID-19.[2]  Local health departments led the way, organizing information and coordinating warnings within their jurisdiction, an initiative that inspired the previous question referenced by the member.

With the adoption of “New York Forward,” 30 contact tracers for every 100,000 residents is one of the express metrics[3] being used to establish when one of the state’s ten regions is ready to begin a phased reopening.  So, every region will be recruiting and deploying “tracers” to gather information and issue warnings to individuals who testing has confirmed have been exposed to COVID-19.

While emphasizing that such warnings must be issued “rapidly,” the CDC’s guidelines for contact tracing also emphasize privacy:

To protect patient privacy, contacts are only informed that they may have been exposed to a patient with the infection. They are not told the identity of the patient who may have exposed them.”

The State of New York, however, does not require this level of confidentiality in its laws regarding quarantine, notification of infection, and contact tracing related to most communicable diseases.  While the precise regulations governing the use of contact tracing to fight the spread of HIV require the consent of the patient, the regulations applying to COVID-19 do not have similar requirements.[4] Nor is such information regarded as protected health information (“PHI”) under HIPAA.

I am highlighting these considerations not to denigrate contact tracing, which has been documented as effective in combating pandemics. However, as of this writing, as reported by The New York Times, many in authority, or with credibility in the arenas of privacy and data security, have expressed serious concerns regarding the procurement and arrangement of the software and personnel that will be used in this massive public health initiative.

Caution about privacy, even during times of emergency, is a good thing.

With all that, the collaborative, community health-focused approach I outlined on March 19, 2020, in https://www.wnylrc.org/ask-the-lawyer/raqs/122 is one I continue to endorse.

In addition to that approach, here is a suggested reply in the event your library is contacted by a state-employed contact tracer, designed to work with your standard protocol for complying with 4509:

[After verifying credentials]

We know your work is critical to public health.  Please send us a written list of what you need, and we will work to obtain consent from our users, as required by CPLR 4509.  In the alternative, please ensure what you need is very thoroughly set forth in a duly issued subpoena or judicial order.  Our library will work to expedite your request as soon as we know we are authorized to do so.

 

One final point

After conducting the research set forth in this answer, it is my opinion that CPLR 4509’s assurance of the confidentiality of library records is not at odds with the current emergency measures our state is taking to protect lives and get our world back on track. 

First, it is critical to remember that under 4509, a person may give their written consent to disclosure.  Many people, upon learning they might pose a danger, will give their express and voluntary consent, if they have the capacity at the time.  That is their right, and there is no concern with your library contacting them to ask the question.

Second, if the need for confidential library records is truly critical, local board of health officials—and the tracers who will be helping their localities—can invoke the authority created by the public health law[5] to obtain duly authorized subpoenas. 

Unlike many other laws and regulations, CPLR 4509 can remain as written, while New York undertakes an unprecedented, massive effort to conduct contact tracing, and protect public health.  

Thank you for an important question.

 



[2] Since reporting new or unusual communicable diseases is also required, cases were probably also reported before March 7.

[3] These metrics are laid out in a graph found at https://www.governor.ny.gov/programs/new-york-forward.

[4] That section is 10 NYCRR 2.10, which states: “It shall be the duty of every physician to report to the city, county or district health officer, within whose jurisdiction such patient resides, the full name, age and address of every person with a suspected or confirmed case of a communicable disease, any outbreak of communicable disease, any unusual disease or unusual disease outbreak and as otherwise authorized in section 2.1 of this Part, together with the name of the disease if known, and any additional information requested by the health officer in the course of an investigation pursuant to this Part, within 24 hours from the time the case is first seen by him, and such report shall be by telephone, facsimile transmission or other electronic communication if indicated, and shall also be made in writing, except that the written notice may be omitted with the approval of the State Commissioner of Health.

[5] New York Public Health Law, Section 309.

Tags: COVID-19, CPLR 4509, Emergency Response, Privacy, Contact tracing

Topic: Local organizations meeting using library's Zoom account - 5/27/2020
My Director has asked me to ask you the following question. In normal circumstances the library wo...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

My Director has asked me to ask you the following question. In normal circumstances the library would host the meetings of local organizations that do not have a building of their own. The library hosts the meetings of organizations like "Concerned Citizens", "Race Unity Circle", the "Bahá'í society", etc. All nonprofits that do not have large budgets and utilize the library for their meetings. Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program? In the same way the librarian would be there to book the meeting, set up tables/chairs, and greet the group, the Zoom meeting would be booked, the link distributed to members, and the librarian there to open the meeting up at the specified time. I would be interested if your answer is different depending on whether the library is in an emergency closure situation or not.

WNYLRC ATTORNEY'S RESPONSE

Life is full of surprises.  When I was in third grade, I was surprised to learn that this strange country called “Canada” occupied the upper half of North America.  When I was in fifteen, I was surprised to learn that “brooch” rhymes with “roach.”[1]  And upon researching the answer to this question, I was surprised to learn that Zoom doesn’t have an “exclusive use” clause in their service agreement.[2]

Now, let me be clear, the Zoom “Terms of Use,” most certainly bar simply enabling a “third” party to use a library’s account.  Here is the clause that does that:

You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.

In other words, Zoom doesn’t want you to “offer” your account out to another party (even if that party is a legit not-for-profit). 

But the member has asked if they can serve as the “host” of the meeting, mirroring the way their library opens its doors for certain groups and gatherings.  Both functionally and grammatically—and thus legally—this means the library is the one using the service.  It’s like my law firm using our Zoom to host a board meeting for a client, since I need to be there anyway.  Or, perhaps more closely, an educational institution letting a student group use its Zoom, so the student newspaper can soldier on. 

So the stark, simple answer to the member’s question (“Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program?”) is “YES.”

That said, being a detail-oriented, pro-risk-management, and liability-averse kind of attorney, I can’t just leave it there.

Physical meetings at your library all must follow some rules.  Some libraries set these rules by policy, others confirm them with both a written policy and a facility use contract. 

These documents ensure that the particular rules at that library will be followed.[3] The same should apply when the library is hosting a Zoom meeting for your community. 

In addition, since the Zoom “Terms of Use”[4] and related agreements impose certain rules, and hold the licensee (your library) responsible for any violations, the conditions for library-hosted meetings should not only require adherence to your rules, but also to Zoom’s.

Zoom’s “Acceptable Use” Policy expressly bars numerous types of activity, including but not limited to:

  • Promoting violence.
  • Harming children.
  • Displays of nudity, violence, pornography, sexually explicit material, or criminal activity.
  • Human trafficking.
  • Supporting or facilitating terrorism or terrorist organizations
  • Any activity that is defamatory, harassing, threatening or abusive.[5]
  • Copyright infringement.

I imagine most libraries can endorse these conditions, but some may be (rightly) wary to impose content restrictions on meetings.  While the limits your library has agreed to with Zoom is a contract the library has voluntarily accepted, I can see a (very) few instances where perhaps a first amendment concern could loom.  So any library considering hosting Zoom meetings for users should think that aspect through thoroughly, and be ready to address it just as you address such concerns for physical meetings.

To help a library navigate these straightforward but choppy legal waters—especially the Zoom Terms’ bar on letting a third party use your account—here is a template “Virtual Meeting” Agreement. 

NOTE: As always, template agreements should be reviewed by your library’s legal counsel to ensure they conform with your library’s charter, bylaws, unique identity, and other policies.

Videoconference Meeting Agreement—TEMPLATE ONLY

Person filling out this form [must be cardholder]

 

Group

 

Meeting date, time, duration

 

Target date to send out the invitation

 

Please note: for the orderly operation of the meeting, pre-registration should be required, OR attendees should be given only limited participation ability.

 

 

Purpose of meeting (must be a purpose consistent with library operations)

 

Estimated number of attendees

 

Record meeting?

 

Live stream meeting?  Please list where the livestream will be accessible

 

Please list your group’s Meeting Facilitator

[see Meeting Facilitator Responsibilities below]

Name:

Title:

E-mail:

Phone number:

Address:

[To be filled in by library]

Library Staff serving as “host” on the videoconference.

Name:

Title:

E-mail:

Phone Number:

Facility Use Policy

[attach]

Additional terms of use

https://zoom.us/reasonableusepolicy

 

 

On the above date and time, the [NAME] library will host a meeting of the above-listed group for the above listed purpose.

It is understood that every attendee of the meaning will be expected to abide by both all the applicable rules of the library for meetings at our facility, and to observe any and all above-listed additional conditions. 

The above-listed “Meeting Facilitator” should be logged in to the meeting at least 10 minutes before so they can discuss the orderly conduct of the meeting with Library Staff. 

The Meeting Facilitator must discuss the functional aspects of the meeting with library staff before the start of the meeting; they should be prepared to discuss how attendees will be able to interact and how the relevant functions of the meeting will be used to meet the meeting's stated purpose.

The Meeting Facilitator should also be comfortable with using Zoom's capabilities to assist the Library Staff in hosting the meeting (monitoring the chat, moderating the discussion, muting or removing participants if needed).

When it is time for the meeting to begin, the library staff hosting the meeting will state:

“Welcome to [MEETING NAME].  Hosting an online meeting with your group is a service the library provides to our community groups without charge.  Just as with hosting meetings in our physical space, the library must enforce rules regarding respect, non-discrimination, and accessibility.  If you have concerns in that regard, please let me know by sending me a private message during the meeting.  And now I’ll turn it over to [NAME] to start the meeting.”

It is expressly understood on behalf of the group that:

  • The library is hosting the meeting;
  • An employee of the library will initiate the videocall;
  • An employee of the library will co-facilitate the technical aspects of the meeting;
  • An employee of the library will participate in the meeting as set forth above to ensure the applicable rules and the conditions of this Agreement are fulfilled;
  • Participants who do not abide by the library’s rules will be muted or removed from the meeting, in the library’s sole discretion;
  • The library can cancel or terminate the meeting, in its sole discretion, at any time.

Please alert the library to any ADA considerations for hosting this meeting.  For meetings with more than 50 participants, the Meeting Facilitator should be ready to discuss accessibility objectives with the Library Staff member.

We welcome your ideas for making our co-hosted meetings better.  Constructive feedback may be sent to [e-mail].

 

Signed: ___________________________________

                        [library representative]

 

Acknowledged: __________________________________ on DATE: ______________.

                                    [cardholder]

 

Unless there is a bylaw, policy, or contract barring staff serving as the meeting host, this is most definitely a service that can be offered even when your library cannot be physically open to the public.  However, at all times, it must be clear that this is the library’s meeting.  Account ID’s, passwords, and hosting capabilities should not be given away.  Co-hosting should never be converted into changing the host.  The meeting “intro-text” should be read every time; it is there to make sure that the library’s primary role is documented in every single meeting you host.  Just like a meeting room should never be used when the library is not staffed, the virtual meeting room must remain in the control of your institution—otherwise, there could be concerns with the license. 

And with that, I wish whoever at your library becomes the “virtual meeting staffer,” a stout heart, a quick finger on the mute button, and lots of community-oriented fun.



[1] I have since been informed that either pronunciation is acceptable.  Fortunately, with my spare fashion sense, it is not a word I use often.

[2] As found May 23, 2020 at https://zoom.us/reasonableusepolicy.

[3] The conditions in these documents will change from library to library.  Some libraries have to enforce the rules of a landlord.  Others will decide to charge a nominal fee (DO NOT do that for a Zoom meeting), or restrict use to a charitable use.

[4] As found on May 23, 2020 at https://zoom.us/terms.

[5] By the time I got to this part of the list, I was thinking “Jeez, it’s an ugly world out there, and Zoom has a front-row seat to it.”

Tags: COVID-19, Emergency Response, Meeting Room Policy, Library Programming and Events, Local Organizations, Online Programming, Policy, Zoom

Topic: Pomp & Circumstance public domain use - 5/27/2020
The song “Pomp & Circumstance” is in the public domain. Is it permissi...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

The song “Pomp & Circumstance” is in the public domain.

Is it permissible for students to play this music while being recorded and for the district to stream it live as well as distribute a link to the recording later?
 

WNYLRC ATTORNEY'S RESPONSE

Not only can the students play, record, and stream “Pomp & Circumstance,” but they can also create an original musical based on it, rap over it, score an original movie with it, and in short: do anything they want with it.[1]

While anyone graduating in 2020 deserves this kind of red-carpet legal treatment, not only can the students do it, but everyone else can, too.  That is the beauty of a work being in “the public domain.”[2]

Thanks, and may all your virtual ceremonies be joyous.



[1] That said, any publisher that has created and distributed its own version of “Pomp and Circumstance” with a specific arrangement, illustrations, instructions, etc. may own the copyright to that particular text, and it shouldn’t be duplicated via hard copy or scanning.  In a similar vein, any publisher that has issued a specific recording may own the rights to that specific recording, and that should not be streamed or used without permission, either.  But the composition of “Pomp and Circumstance” is in the public domain, so generating a student-created version of it is fine, and if the district is the one recording it, they (and the performers) own the copyright (see Copyright Office Circular 56)!

[2] “In the public domain” means “no longer protected by copyright.”  Edward Elgar, composer of “Pomp & Circumstance,” died in 1934, so even under the most rigorous scheme of ownership, the copyright to P&C has expired.

Tags: COVID-19, Emergency Response, Online Programming, Public Domain, Streaming

Topic: Ed Law 2-d Compliance and Vendor Products - 5/21/2020
Many districts have had COVID-19 access for SORA Ebooks. I am not sure if it is ED Law 2-d complia...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

Many districts have had COVID-19 access for SORA Ebooks. I am not sure if it is ED Law 2-d compliant. We do not want to support or suggest products to our membership that do not meet that compliance. Can you let us know? Thank you!

WNYLRC ATTORNEY'S RESPONSE

New York school libraries[1] operate in a complex web of regulations governing student privacy.  Laws such as FERPA, CPLR 4509, and “ED 2-d” all restrict what can be done (and can’t be done) with library records related to students.

At “Ask the Lawyer,” we’ve spent a fair amount of time on FERPA[2] and CLPLR 4509[3], so if you need some background on those, check the footnotes for this sentence.

That said, I have never written an “Ask the Lawyer” on ED 2-d, the new law protects “personally identifiable information” (“PII”)” held by a school district.  I’ll weave the relevant parts of the law into this answer.

And I have never written about (or used) SORA.  Since SORA is at the heart of this question, here is a little background on that:

SORA is a service provided by Rakuten/Overdrive.  In its own words, it provides “Millions of ebooks and audiobooks for your students. Thousands of publishers. Comes loaded with hundreds of premium titles at no cost. Infinite reading possibilities on practically any device.”[4]  Participating school districts enable student access to SORA through their own log-in points (the mechanics of which vary from school to school).

How does the service work?  As one reviewer put it[5]: “SORA can be downloaded for free by all students and teachers. If their school or district is an OverDrive partner, they can then use SORA to access their school's digital collection and also connect with the local public library's digital collection.”[6]

And finally, it is worth noting that SORA has a very cute logo: a puffy-silver astronaut, soaring wide-eyed into an eye-relaxing sky of silver-blue.  The astronaut is a combination of a Pokémon, Sailor Moon, and Big Hero Six.[7]  He is ready to read, and all set to escort your students to a universe of reading, too!  The logo is so cute, I don’t know how the member could think this company could do any wrong.

But savvy librarians are not distracted by cute logos.  And in this case, our savvy librarian-member asks: is use of SORA by a district compliant with the privacy protections of New York State Education Law 2-d?

We’ll start this analysis with a term defined by the law: “third party contractor,” which ED 2-d defines as:

 … any person or entity, other than an educational agency, that receives student data or teacher or principal data from an educational agency pursuant to a contract or other written agreement for purposes of providing services to such educational agency, including but not limited to data management or storage services, conducting studies for or on behalf of such educational agency, or audit or evaluation of publicly funded programs.

If SORA (or another service), meets this definition, then the district/school using it must implement the requirements of Ed 2-d, which are in the regulations found here:

http://www.nysed.gov/common/nysed/files/programs/data-privacy-security/part-121.pdf

I would set the full requirements out in this answer, but they are lengthy, and the regulations are about as plainly worded as can be.

In addition, for a library at a specific school in New York, there is a more institution-specific way to find these requirements.  To comply with Ed 2-d, every school district must have their own “District Privacy Officer” (“DPO”)[8] and that DPO must ensure that their institution develops and publishes a document called the “Parents Bill of Rights for Data Privacy and Security.”[9]

The parents’ “Bill of Rights” must list the district/school’s obligations vis-à-vis third-party contractors, including precise requirements for the protection of student information accessed by a specific contractor.  In other words, for each “third party contractor” (like, potentially, SORA), a district/school must publish the unique “supplemental” contract terms they’ve created to ensure the service meets Ed 2-d requirements. 

Readers who want to see the Ed 2-d criteria of their own particular district or school should be able to find it by searching for that district’s “Bill of Rights.”[10]  For any district using Overdrive and/or SORA, the “Bill of Rights” will either contain supplemental terms applicable to SORA, or they will have determined that their use of SORA does not disclose any PII.

So here is the question at the heart of the member’s question: does use of SORA, as arranged by a district, disclose PII to Overdrive?  While each district needs to make that determination on its own, in my opinion, any third party contractor that students must log into using a school-issued ID, after which the student will access content that supplements their school library’s collection (and be able annotate and leave notes about[11]), has a high likelihood of collecting PII.   

But as I say, it will be up to the district’s DPO to make the call.  If that call is: “Heck, yeah, they’ll be getting PII,” the district will then need to follow the law and regulations[12] to ensure the use complies. This means verifying that the contract has the right Ed 2-d requirements, and supplementing its “Bill of Rights” by disclosing the precise requirements the contract imposes on the contractor.  But if that call is: “We checked it out, and nope, no PII heading out the door here,” then nothing further is needed (insofar as ED 2-d is concerned).

While it may seem like I am punting on this answer (“Go see your DPO!”[13]) I can say that the SORA Privacy Policy[14], as published on May 20, 2020, does contain the elements that are consistent with the requirements of ED 2-d.  As but one example, Overdrive has a process for correcting records, which provides:

If you are a teacher or administrator at an educational institution using the school Services, please email privacy@overdrive.com to request the review, correction, and/or removal of a student’s Personal Information, and we will facilitate your access to and correction of such Personal Information promptly upon your request.

The ability to “challenge the records” of a contractor is a requirement of Ed 2-d.[15]  This suggests to me that Overdrive knows SORA will be gathering protected information, and the service is ready to enter into contracts that give the required assurances.  But only a look at the school’s contract for SORA, and its precise definition of PII, can ensure that.

The bottom line?  No matter what the published “Privacy Policy” of SORA says, there is no way to fully confirm a school library’s use of SORA complies with Ed 2-d law and regulations until the district’s designated DPO[16]:

1) Assesses what information will be accessed by or transferred to Rakutan/Overdrive as a result of their district contracting for SORA;

2) Determines if that information is PII as defined by Ed 2-d[17];

3) If it is PII, ensures the contract complies with Ed2-d; and

4)  Takes the steps to publish the “Bill of Rights” supplement as required.[18]

In other words: in Ed 2-d compliance, there should be no guesswork.  By working with the school’s DPO, the guesswork should be entirely removed.

Thanks for a great question!



[1] Not to be confused with New York’s “school district public libraries,” which are chartered libraries operating separately from their associated district.

[6] If you want to read some harsh, some glowing, and some occasionally amusing reviews, check out the SORA review content here: https://play.google.com/store/apps/details?id=com.overdrive.mobile.android.sora&hl=en_US  I particularly enjoyed the brief but scathing review by a person who thought the service was supposed to be a game.

[7] I am not one myself, but I have anime fans in the family.  It rubs off.

[8] Per Regulation 121.8(a), “Each educational agency shall designate a Data Protection Officer to be responsible for the implementation of the policies and procedures required in Education Law §2-d and this Part, and to serve as the point of contact for data security and privacy for the educational agency.”  That’s the “DPO.”

[9] No, that is not a typo in “parents.”  The law left out either possessive apostrophe (“parent’s” or, for the plural possessive “parents’”).  Grammar matters, NY Assembly…grammar matters.

[10] I tried this on several different districts/schools across the state; a few institutions that shall remain nameless seem to have flunked, but admittedly, I didn’t look much harder than a cursory google search—which worked for many of the other institutions searched.

[11] Yes, I watched the SORA demo and paid attention to the additional features, which includes highlighting content and typing in comments.  I guess it beats writing in a book, which, to my husband’s great chagrin, I have been known to do (only to my own books).

[13] This is also critical because the definition of PII may vary slightly from institution from institution.  This is because student PII is based on the definition of “education records” in FERPA, which does allow some variance in “directory information” and other nuances this footnote is too small to cover.

[15] Regulation 121.3(c)(4)

[16] Or designee, of course.

[17]Personally Identifiable Information, as applied to student data, means personally identifiable information as defined in section 99.3 of Title 34 of the Code of 3 Federal Regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C 1232g, and as applied to teacher and principal data, means personally identifiable information as such term is defined in Education Law §3012-c (10).”

[18] I realize this answer may give DPO’s out there extra work.  I am afraid I can’t apologize, since vigilance about privacy is a beautiful thing.  And hey—job security!

Tags: COVID-19, Emergency Response, School Libraries, Ed Law 2-d, Overdrive, SORA

Topic: Policies for employees returning to work during COVID-19 - 5/21/2020
Public and Association libraries have questions about making policies creating conditions that mus...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

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.

However.

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[1]:

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.



[1] Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies, Safety, ADA, HRL

Topic: Phone recordings of stories and copyright - 5/12/2020
If staff record themselves through our phone system reading published short stories and poems that...
Posted: Tuesday, May 12, 2020 Permalink

MEMBER QUESTION

If staff record themselves through our phone system reading published short stories and poems that are then made accessible to the public through the same phone system, are there issues with copyright? Various public libraries nationwide offer dial a story services, and my school district public library is looking to offer this too. Some of our patrons do not have access to technology and internet, so we want to offer this no frills service during our COVID-19 closure, and beyond. The recordings would likely be 3 to 7 minutes in length and offered a couple of times a week.

WNYLRC ATTORNEY'S RESPONSE

For this answer, we are again joined by Jessica Keltz, associate attorney at the Law Office of Stephanie Adams, PLLC.

As we noted in our March 24 Ask The Lawyer answer (https://www.wnylrc.org/ask-the-lawyer/raqs/123), copyright law does still apply despite the pandemic and the many needs it has created for alternative outlets, resources and programming.

For a public library, unless the service is an adaptation under the Americans with Disabilities Act, any recording of a copyrighted work needs to be made with the permission of the rights holder. Under fair use doctrine, limited excerpts can be read, interspersed with commentary. But a full work presented alone in its entirety or in substantial excerpts, without the permission of the rights holder, may not be. This doctrine remains in effect.

One solution to consider is reading either works that are in the public domain, and/or works whose rights holders have given permission for this type of use during the pandemic or otherwise. Readers may have heard about LeVar Burton Reads, a pandemic podcast from the iconic Reading Rainbow host, in which Burton encountered this exact struggle and was given permission by noted authors including Neil Gaiman and Jason Reynolds. While most local libraries will not have Burton’s star-studded cast of Twitter followers from which to draw partnerships, they may find folks in their own communities who are happy to freely share their own works.

A list of ideas for children’s books in the public domain is here: https://concretecomputing.com/thoughts/list-of-public-domain-free-books-for-kids-by-grade-level/

Project Gutenberg is also often recommended for searching for works in the public domain: http://www.gutenberg.org/

Tags: Copyright, COVID-19, Emergency Response, Story time

Topic: Emergency Policy Manual - 5/11/2020
As we look to re-opening our public libraries with abridged services, we want to limit the chances...
Posted: Monday, May 11, 2020 Permalink

MEMBER QUESTION

As we look to re-opening our public libraries with abridged services, we want to limit the chances of legal challenge from organizations who seek to make a statement about government response to COVID-19 and social distancing measures. We are considering a recommendation to have a brief policy manual addendum with policy adjustments that supersede the policy manual, have a short review and renew period (aligned with the library board meeting schedule), and are triggered by an objective, external to the library, event. What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?

Take, for instance, a library's meeting room policy. For a library with a 2,000 sq ft community room, with a normal occupancy of 250 persons and a seated occupancy of 150 persons (fake numbers), in which the board meets every other month.
- Initial addendum policy would have a line which said "Meeting Room: The meeting room is closed to all groups. Policy approved April 27, 2020. Will expire June 26, 2020."
- At the June board meeting the board passed "Meeting Room: The meeting room will open for library sponsored programming July 1st. Registration will be required and limited to 20 persons to follow current social distancing guidelines. Policy approved June 26, 2020. Will expire August 27, 2020."

And so on.

What are recommendations for the pre-amble of such an addendum? What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?

WNYLRC ATTORNEY'S RESPONSE

This answer is being composed on May 9, 2020.  New York is still fully on PAUSE, but the Governor has divided the State into ten districts who must hit seven defined metrics to begin rolling back various restrictions.[1]  Careful prognosticators are cautioning that what is rolled back can also be re-implemented, so caution and flexibility are the watchwords of the times.

In this context, many libraries are considering a phased resumption or extension of operations, and to do so, may need to adjust many of their standing policies.

As the member’s question highlights, the stakes for such adjustments can be high.  The greatest risk in taking emergency and temporary measures are that: 1) they are not legal; 2) they create legal but mission-averse collateral consequences[2]; 3) they are legal and perfectly mission-aligned, but still just make people mad.

Right now, libraries don’t have the luxury of time to fully mitigate these risks.  But collecting, assessing, and documenting some steps, a library can do its best to avoid them.

Here is how to do that:

Step 1: Inventory your board’s authority and obligations

Library leadership seeking to temporarily adjust library policy to address COVID-19 must first assemble the following:

  • The library’s charter
  • The library’s bylaws
  • The library’s policies
  • Any collective bargaining agreement (“CBA”)
  • Any employment contracts
  • Any judicial orders, settlement terms binding your library[3]
  • Any COVID-19-related resolutions
  • Current budget
  • The 202-series Executive Orders posted at https://www.governor.ny.gov/executiveorders

Many libraries will already have these assembled from previous such exercises.

 

Step 2: Inventory the specific policies your library needs to adjust

This “inventory” should include a citation to each policy your library needs to adjust, the basis of the need, any legal compliance considerations, what the precise terms of the proposed temporary change are, and, as the member writes, the reversion trigger of duration of the change.

This sounds painstaking and arduous, and it will be.  Fortunately, when it comes to the painstaking and arduous act of organizing information, libraries have a home team advantage. 

And don’t worry, in the next step I give you a chart to sort it all out.

 

Step 3: Identify what’s needed: alteration of the policy, or complete suspension?

In some cases, a policy will just need some small, temporary alterations to continue serving the requirements of the law and the needs of the library and its community.  However, some policies are so complex, or so rife with temporarily unsafe practices, they will simply need to be suspended.[4]

Here is a chart template that sets the “inventory” categories of Step 2, with examples the two types of adjustments:

1. Policy or obligation to adjust

2.  Basis of need to adjust

3.  Law or policy governing change

4.  Proposed

Adjusted provision

5.  Reversion trigger or duration

 

Example: Policy temporarily altered

 

Policy B-2: Board Meetings

 

Limits on large gatherings and social distancing requirements requires limiting in-person contact

 

Board meetings are controlled by the Education Law Section 260 and Article 7 of the Public Officers’ Law (“Open Meetings Law”), but are temporarily governed by Executive Order 202.12.

 

As allowed by the EO 202.12, the Board shall meet via teleconference, and the audio shall be simultaneously available at a link on the library’s website, as well as recorded and transcribed.

This adjustment shall be in effect until the expiration of the terms of EO 202.12.

 

Example: Policy temporarily suspended

 

Meeting Room Policy allowing use on a reservation basis.

 

The Library wants to use the Meeting Room but must suspend community use to observe current social distancing requirements and health-oriented practices.

 

 

Executive Order # and #, as well as the usual laws governing use of library property.

 

To ensure observance of [cite EOs] the Meeting Room policy is suspended until two weeks after the last remaining restriction is lifted.

 

 

To allow time for cleaning and operational adjustment, the regular policy will go back into effect two weeks after the last remaining restriction is lifted.

 

Step 4: Contrast the adjustments with your library’s obligations

This is really a second look at the third column- “Law or policy governing change.” 

It encourages your leadership—and ideally, your lawyer—to take a deep look at any standing legal obligations, and make sure your temporary adjustment doesn’t run afoul of them.

For instance, in the Meeting Room Policy example, let’s say that, per the policy, the library had a standing, written agreement for the room to be used by a writer’s group on a weekly basis.  This might require an extra step in your adjustment to the policy, with some targeted outreach to cancel what might be regarded by the group as a written contract.[5]

SPECIAL NOTE FOR LIBRARIES WITH UNIONS: Step 4 is especially critical if there is a union contract involved.  Throughout this time of COVID-19 response, I have seen many examples of situations where a library’s prospective plans have been impacted by CBA provisions for emergency closure or other obligations. I have written about that at length elsewhere,[6] so for now, will simply say: in all of this a library’s union should be an ally and critical stakeholder promoting employee well-being, and hopefully the need for any changes to routine policy and procedure can be approached in that spirit. 

 

Step 5:  Diplomacy Check

Technically, this is not a “legal” step, but I can say that in many ways this step is the most important part of avoiding needless legal threats and hostility.

Step 5 involves taking yet another look at the chart, and adding other two columns, covering: “Who will be impacted by this policy change?” and “How can we roll out the change to lessen any negative impact?”[7]

Here is what these columns look like in my imaginary examples:

6.  Who will be impacted by this policy change?

7.  How can we roll out the change to lessen any negative effects?

Board Meeting Policy Example:

 

 

Everyone who relies on library board meetings as a chance to scour the budget and yell at the treasurer about how much was spent on new shelving, even though the purchase followed every bidding step required by state procurement rules.[8]

 

The library will put up a sign on the front door, and in the usual places where the library sends formal notices about the meetings, saying: 

 

As you know, our board is meeting via telephone and working to keep our library ready to serve the community!  You can hear our meetings at [link] or get a recording at [way].  We’ll have transcripts ready a month after the meeting.  Please keep in touch by sending your comments to [NAME] at [ADDRESS].”

 

Meeting Room Policy Example:

 

People who really, really just want to see their writing group.

 

 

The director will ask [STAFF] to outreach to the regular groups, to see if they need assistance finding alternate resources while we wait to welcome them back.

 

 

And with all that legwork done, we can now answer the member’s core questions:

Question 1: What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
The elements would be 1) a preamble setting forth the board’s authority, goal and process for the temporary changes; 2) a list identifying the policies that are temporarily suspended or temporarily altered; and 3) an articulation of the replacement policy or temporary changes.

 

Question 2: What are recommendations for the preamble of such an addendum?

Here is a template for the preamble:

The [NAME] Library was chartered in [YEAR] by the New York Board of Regents, and operates under the authority of that Charter, the New York Education and Not-for-Profit corporation law.  In accordance with that authority and in compliance with the Library’s bylaws [OPTIONAL IF UNION AGREEMENT OR OTHER CONTRACTS ALSO GOVERN: and all other applicable obligating documents], to promote the mission of the library, the safety of all it serves and employs, and the needs of the community at this time, the following temporary changes to the following policies are made:

And here is how you link it to the other elements:

[INSERT chart with only columns 1, 4, and 5].

 

Question 3: What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?

Here is template language for a board motion:

WHEREAS the State of New York is currently subject to Executive Orders governing the State’s response to the COVID-19 pandemic; and

WHEREAS the [NAME] Library’s mission is to [INSERT]; and

WHEREAS some of the Executive Orders impact the ability of the Library to fulfill its mission while abiding by its usual policies and procedures; and

[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to the terms of a collective bargaining agreement signed on DATE: and

[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to [variable]; and

WHEREAS the Library has developed temporary adjustments to its usual policies and procedures, with all due consideration of its standing obligations, to aid itself in operating safely and in compliance with the orders, and in period of recovery to follow;

BE IT RESOLVED that the following temporary changes, for the corresponding durations sets forth below, are enacted, effective immediately:

[insert chart with columns 1, 4, and 5]

AND BE IT FURTHER RESOLVED that the full chart setting forth these temporary adjustments shall be posted on the Library’s usual place for posting policies no later than [DATE]; and

AND BE IT FURTHER RESOLVED that the following measures to positively communicate these temporary adjustments shall be taken:

[INSERT measures identified in column 7].

 

Final thoughts

When using these steps, it will be important to remember that an individual library’s response will be informed by not only their unique documents and priorities, but which of New York’s ten regions[9] they are in.  This means that what works for one library won’t necessarily work for a similar library in the next county over.  Nor should one library be judged by what is being done at another.

And finally—and I have mentioned this in several columns lately, but I will mention it again—attorneys throughout New York State are stepping up to the pro bono plate these days.  Now is the time to see if your library can enlist an attorney familiar with municipal, education, employment law, even if it is just to take a fresh, hard look at your final product.  If you can’t find that attorney, you can ask for a referral from your local bar association.

By assembling the documents listed in this answer, and identifying your priorities and concerns in the chart, you’ll help that attorney help your library.  In addition, I welcome questions from local attorneys who are helping their local libraries pro bono; they can reach me at adams@losapllc.com, or my library paralegal Jill at libraryspecialist@losapllc.com.

As the member’s excellent question suggests, the more unified and well-developed the response of libraries can be, the more we can avoid challenges, and focus libraries’ energy on the business of serving the public.  Sadly, the need for that energy will be great.

Thank you for giving me the opportunity to answer this very important question. 



[2] Like a writers’ group saying: “Forget it.  We’ll just meet at Starbuck’s.”

[3] For instance, if a patron brought a legal action under ADA, and the library reached a compromise it is legally bound to follow.  Most libraries will not be subject to any such restrictions, but I want to ensure they aren’t forgotten.

[4] In my experience, unless the law mandates that you have one (for instance, certain libraries must, under the Education law, have an internet access policy) suspending a policy is also the way to avoid inviting arguments with people who will try and word-smith your temporary adjustments.  As a lawyer, I do enjoy a good quibble, but there’s a time and place for it, and debating when a writer’s group can get back in the community room might not be the best use of energy right now.

[5] It really sounds like I am picking on this writer’s group!  I’m not, we’re a fan of writer’s groups in my law firm (they produce writers, who are part of our client base).  I think it’s just that in my mind everyone is, at this mid-May point, is very eager to resume normal social activity.  I know I am.  Meeting on Zoom is like eating low-fat olive oil.

[7] This is not a legal tactic tested on the bar exam.  I learned this from my mentors at Niagara University, where I served as General Counsel for ten years.  When legal strategy was proposed, their first thoughts were always about how it would hit the very real people involved. 

[8] One of my favorite quotes about this phenomenon is from Parks and Recreation: “So what I hear when I am being yelled at is people caring loudly at me.”

[9] My poor staff.  They just got used to New York being divided into nine library council districts, and 23 public library system districts.   Val, our keeper of the “library map,” should be getting danger pay.

Tags: COVID-19, Emergency Response, Meeting Room Policy, Policy

Topic: New Governor Proclamation and Elections - 5/7/2020
The Gov has put out his new proclamation in regards to votes. At [our school district public libra...
Posted: Thursday, May 7, 2020 Permalink

MEMBER QUESTION

The Gov has put out his new proclamation in regards to votes. At [our school district public library] our vote has always been separate from the school vote but the gov's doc reads that our only option is to have the vote with the school or have it in Sept. Sept would not work since our fiscal year is July to June.

Also, a couple of us are not sure about the trustee election. Do we not hold trustee election since we do not currently have any petitions filed for the open seat, if that is the case can the board appoint until the next election[?]

WNYLRC ATTORNEY'S RESPONSE

As a prelude, readers may want to take a look at an earlier COVID-19-era “Ask the Lawyer” about library elections postposed per Executive Order 202.12, which ends with this promise:

If and when we get an update or “further directives,” we’ll post any update to this answer.”

As you can see, it took a few weeks, but we got those “further directives” on Friday, May 1, 2020,[1] in Executive Order 202.26.

Libraries don’t miss much.  On Monday[2] May 4th, we also got the above follow-up question.

So here is the promised update, and my answer to a conundrum like the one this “further direction” creates for the asking library.

But first…

If there is one thing providing this service to hundreds of libraries has taught me, it’s that running a library is hard.  And running a public library comes with an overlay of regulations and community politics that makes a hard job harder.

So for those libraries out there finding that this issue of rescheduled budgets and elections is making a hard job harder, I say: yes, it is.  The strain on your communities, staff, and leadership is growing every day, and it’s important to acknowledge that. 

Sometime, in the pressure of the moment, it can be hard to say that.  So, for libraries seeking a default way to unite and raise the spirits of your staff, leadership, and allies in information and community service, I suggest the following “2020 NY Libraries Chanty.”[3] Gather your board,[4] staff, and/or supporters on a Zoom call, or a teleconference, have them all face the direction of the library (this is important, even if you can’t see each other!), and recite:

It’s 2020. 

The books are still here. 

People still need us. 

These challenges are hard,

but we got this.

 

You can also add your own custom lyrics, like:

Located in a sunny glen

New Hartford Library faces ahead

Times are hard, the Town is strong

We’ll do yoga[5] here again ere long.

 

The importance of simple, affirmative, repeated affirmations like a chanty--or simply repeating a mission statement at the beginning and end of a meeting--can’t be over-stated--especially at this time. 

Further, since the notion of “normal” is starting to shift, it is vital that the slowly materializing “new normal” be infused with a united vision of a strong, community-focused, mission-forward library. 

This can be easy to overlook in the midst of emergency budget meetings and communicating about emergency closure.  A simple song or phrase, regularly repeated, can be a key component in buoying spirits and plotting a course for the future.

(And if you do craft a custom message, have a contest, because I bet your local youth can come up with better verses than I can.)

Okay, with the light verse out of the way, here is the hard stuff:

 

Timing of a School District Library Election

As you may recall, Executive Order 202.12 stated:

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

So what does 202.26’s “further directive” do?  First, it expands on the impacted elections (seemingly including ALL of them, not just those set for May or June, as in 202.12), and as the member writes, seems to give only two timing options for conducting your votes.

This timing is found near the end of the Order, which states through May 31, 2020:

Any district or special district, including, but not limited to fire, library, sewer, or water, that conducts an election and/or budget vote shall be rescheduled to September 15, 2020 and collection of signatures for nominating petitions is hereby suspended until further notice, subject to a process determined by a future Executive Order; provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.

However, a careful reading of the context of above-excerpted language[6] shows that those particular bullet of 202.26 only applies to “through May 31,” and that it pertains to “any district or special district” library.

In the meantime, earlier in this voluminous Executive Order (nine bullets deep), it states:

[P]ublic libraries established and supported by a school district [may] re-notice an election noticed pursuant to this section. Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process. Such a vote may be managed by the school district or the library, at the library’s request.

If you had eight cups of coffee the day you read it, you may recall that in the answer discussing EO 202.12, we discussed that the EO did not impact all school district library elections, since by law, those have to happen before July 1, and 202.12 only covered elections through May.

This detail now comes roaring back into relief as we dissect EO 202.26.  Upon a close analysis, it can be seen that this Order gives school district public libraries more latitude than district and special district libraries, in paragraphs such as:

Sections 259 and 260 of the Education Law are hereby modified for any library election held on or before July 1, 2020, to eliminate any requirement for an application to access an absentee ballot, and each such eligible voter shall be mailed an absentee ballot with a postage paid return envelope.

If school district public library votes limited to the June 9/September 15 options open to district and special district libraries, this bullet about “any” election before July 1 would be unnecessary.

What does this mean?  Well, as the Order says:

Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Remember, both EO 202.12 and 202.26 modify Section 260 of the Education law, which (among other things) creates special rules for election and votes pertaining to school district public libraries. 

Section 260 provides:

7. The board of trustees of a public library established and supported by a school district shall, in addition to powers conferred by this or any other chapter, be authorized in its discretion to call, give notice of and conduct a special district meeting for the purpose of electing library trustees and of submitting initially a resolution in accordance with the provisions of subdivision one of section two hundred fifty-nine of this chapter. Such meeting shall be held prior to the first day of July but subsequent to the first day of April. Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting.

EO 202.12 did postpone any elections set for April or May (not June!), but left many details about petitions, notice, and voting for “further directive.” 

EO 202.26 now gives those further directions, and modifies Section 206 further to require a vote to happen either

…in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Further, the EO honors the autonomy of a school district public library by providing:

Such a vote may be managed by the school district or the library, at the library’s request.

What does this mean for a school district public library? 

First, they must work with their sponsoring district to obtain a copy of the guidelines developed for the absentee vote.

Second, they must decide if they have the capacity to manage the vote, or should request the district to manage it.

Third, if the library can manage it independently, they must abide by Education Law 206 and properly notice (or, as authorized, re-notice) and conduct the election and budget vote, per the guidelines adopted by their district, before July 1.

I see no provisions in Executive Order 202.26 limiting school district public library elections and budget votes to the June 9 or 15th dates. 

This might seem to be in contrast to the plain language of EO 202.26’s fourth-from-last bullet, which states: “provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.”

However, that fourth-from-last bullet does not apply to school district public libraries—it applies to “library districts.”  Any other interpretation goes expressly against language in the ninth bullet stating that school district public libraries are expressly confirmed as having the authority to run their own election.

So unless we get an even further directive, or the state realizes they created an unintentional hole in the process here, it is clear that school district public libraries still have the authority to conduct their elections before July 1st…so long as they abide by the guidelines developed by their district for absentee voting.

I take this position on May 5, 2020, with a great deal of confidence, but must still acknowledge that I am out on a limb. These Executive Orders are constantly being revised and clarified by subsequent Executive Orders (202.26 “clarifies” 202.23’s provision about absentee ballots in its final bullet).  So while I believe this interpretation makes sense both under the law and within the borders of the document itself, school district public libraries scheduling, noticing and conducting their elections should conduct a clear, explicit, documented discussion with their sponsoring districts to make sure they agree that this is the way to proceed.

And we should all keep our eyes open for further clarification!

 

Trustee Election

Executive Order 202.26 also contemplates that getting candidates’ petitions over the finish line might be a little tough this year, so in that same “ninth bullet” devoted to school district public libraries, it provides:

Furthermore, the same provisions that are made for a school board trustee’s petition shall apply to a library board trustee’s petition.

These “provisions” for trustees’ petitions are in bullets[7] seven and eight:

  • Sections 2018, 2032, and 2608 of the Education Law to the extent necessary to allow candidates be listed on ballots alphabetically, and that ballots for small city school districts shall be set 30 days before the election;
  • Sections 2018 and 2608 of the Education Law to the extent necessary to eliminate any minimum threshold of signatures required, provided, however, an individual must meet any other requirements necessary to be placed on the ballot, including any applicable residency and age requirements;

The member asks “since we do not currently have any petitions filed for the open seat” should they simply appoint trustees, per their bylaws, until the next election?

These are incredibly unique (and hopefully rare!) circumstances, but remember, even at this unusual time, Section 206 (7), except as modified by Executive Order, governs school district public library elections.

That law specifically states:

Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting. [emphasis added]

This does not appear to be an “optional” process, and no active EO has changed it.  Therefore, if a school district public library does not conduct required election, the district must. 

Resorting to a bylaws appointment or deciding not to conduct the election is not an option.

Given all that, and considering the unique circumstances for 2020—incuding the newly relaxed requirements regarding trustee petitions—I advise that before not proceeding with an election process (and thus triggering mandated school district management of one), the board coordinate the quest for trustees with its overall response to the current situation. 

In other words, just like with all trustee recruiting, this is an opportunity to promote the mission of the library, and to recruit qualified people to help in the times ahead.

Here is a template recruitment notice for such an effort, referencing the current relevant Executive Orders, which could be modified for your library, and pushed out in both local media and on social media as well as the library's website:

Greetings from the [NAME] Library. 2020 has been an extraordinary year. In addition to changing our life in many ways, it has impacted the ability of potential trustees to petition to serve on the library's board of trustees (see Governor’s Executive Order 202.12).

Trustees play a vital role in our library: defining library policy, overseeing the budget, and deciding the library’s strategic directions.

The [NAME] Library’s current election, which due to emergency circumstances and per Executive Order 202.26 will be conducted via mail-in ballot, is scheduled for a [DATE]. If you are interested in serving as a library trustee, executive order 202.26 has changed the requirements, and now no signatures are required to put your name on the ballot.

If you are interested in submitting your name for election to this position , please [INSERT LOCAL GUIDELINES].

Service on the [NAME[] Library will be essential as our community recovers from the restrictions caused by COVID-19, and the years ahead. To help us serve that need, we seek candidates who know the community, who [INSERT BYLAWS’ TRUSTEE CRITERIA] and who believe that access to information and shared services will be a vital part of our recovery and the years ahead.

A final word: just like in the last answer regarding postponed elections, I must emphasize: if you can, now is the time for your school district public library to find a local lawyer to assist with your process, just to have back-up during uncertain times. 

I am always happy to get calls from local attorneys to strategize on these issues; sometimes local circumstances can throw a curve ball at an otherwise straightforward situation…and this situation is anything but straightforward!

School district public libraries: I wish you good luck in your recruitment, your elections, and your budget votes. 



[1] A day when many of us learned our children would not be return to school for the 2020 Spring semester.  So…not quite a “day that will live in infamy,” but definitely the day my law office receptionist got a new “duty as assigned”: remote kindergarten substitute teacher.

[2] May the fourth be with you.  Especially now.

[3] A “chanty” is a song sung (usually at sea) by people doing hard work together. Don’t worry, first amendment fans, this one is completely secular!

[4] If you gather the board this way, send a notice, since the notice provisions of the Education Law and the Open Meetings Law are still in effect.

[5] My Mom’s gentle yoga class at New Hartford Town Library has been on hold.

[6] Which, if you’re reading along with the Order, is four bullets from the end…jeez, I wish they’d number these things…

[7] “Bullet” sounds so punchy.

Tags: COVID-19, Elections, Emergency Response, Executive Order

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

MEMBER QUESTION

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

WNYLRC ATTORNEY'S RESPONSE

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

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

Step 1

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

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

 

Step 2

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

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

 

Step 3

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

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

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

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

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

 

Step 4

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

 

Step 5

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

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

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

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

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

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

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

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

[Insert Library] Temporary Safety Practices

Scope of Temporary Safety Measures

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

Activities

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

[list activities]

Safety Practices

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

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

ADA

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

Communication

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

Code of Conduct

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

 

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

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

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

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

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

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

Yes (but follow the steps above).

Are libraries required to provide a mask for the public?

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

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

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

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

 



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

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

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

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

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

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

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

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

Topic: Using tax levy or donated funds to purchase food for community - 4/30/2020
Could we use any of our budgetary funds as collected through our tax levy and/or funds received fr...
Posted: Thursday, April 30, 2020 Permalink

MEMBER QUESTION

Could we use any of our budgetary funds as collected through our tax levy and/or funds received from donations (restricted and unrestricted) to pay for food (dry goods, fresh produce and/or fruit) and PPE's which would be given freely to the public/patrons some of which may not be from our community (we would not ask them for a library card or ID)?

If so, could it be considered a program or if not what other budgetary designation would you suggest it be given?


 

WNYLRC ATTORNEY'S RESPONSE

Before I answer this, I am going to share a story.  Trust me, it’s relevant.

When the workforce restrictions and ban on large gatherings due to COVID-19 started impacting libraries, the first wave of questions to “Ask the Lawyer” were about continuity of operations.  Specifically, they were about continuing payroll and still offering programs, even though staff would need to work from home.

Because Executive Orders and public health restrictions were happening at a rapid pace, answers needed to be developed quickly. 

If there is one thing the lawyers hate, it is quick decision-making.  We like precedent, we like time for research, and we like ample time to reflect on the implications of our client’s decisions.   In a world moving ever-faster, this is one of the things I cherish about my profession: it demands reflection.

But with libraries waiting for input, I didn’t have the luxury of time.  My research indicated that—barring a union contract provision or other express intervening factor—job expectations could be temporarily altered and library programs could continue, re-tooled to meet social distancing requirements (a/k/a “online”) while ensuring legal compliance and limiting liability.  But I couldn’t take a week or two to decide.

So I did what lawyers do when we don’t have time to let advice ferment—I turned to another lawyer.

I called an attorney I knew would appreciate the nuances of a question involving municipal law, Education law, taxpayer money, and the all-seeing eye of the NYS Comptroller.  I laid out the thinking that would eventually form my answers, and asked him to poke any holes he could see (I think I said “Pretend you’re the attorney for an angry taxpayer”). 

He asked a few well-informed, testing questions, and when my legal analysis held up, I felt good. 

But then he asked:

“Cole, do you actually think when this thing is all over, the Comptroller is going to organize a posse and hunt down libraries for trying to help their communities? I mean come on…people are in real need here.  Who would do that?”

I laughed, and it felt good.[1]  I thanked him and said I owed him one (in my world that means he gets to ask me a similar favor, any time, night or day, and I have to deliver).

Here’s the truth, though: although I laughed, my secret answer to his question was: Yes.  Yes, I do think that when this is all over, the Comptroller could audit and expose fiscal mis-steps by well-meaning libraries.  And I am also concerned that frightened tax payers and municipalities, searching for a way to “solve” fiscal panic, could use any small lapses in compliance or transparency to try and reduce budgets next fiscal year (just when they’ll be needing their libraries to assist with ongoing community recovery).  That is why the member’s question is so important.

That said, I got into this business because I believe that law, when well-developed and thoughtfully applied, can ensure justice and create the conditions for a happy society.  And I think the law—even as construed by the Comptroller—will allow for the actions proposed by the member, without the concern that a prohibited gift[2] or shady transaction was engaged in.

How?

I’ll give you three solutions.

But first…

Some Necessary Background

As a primer to each solution, just in case you haven’t checked in on fiscal controls for public libraries, every reader should visit NYLA’s excellent “Handbook for Library Trustees” (2018 edition), pages 50-58.[3]  This section sets forth all the routine requirements for properly accepting, retaining, spending, and accounting for both public and privately sourced funding. 

The solutions below, and the steps to set them in motion, build off the assumption that a library is following the fiscal practices laid out in those pages.

And just one more thing…

 

Safety First

Okay.  Let’s say your board is ready to assess and approve budget adjustments to initiate the acquisition and distribution of food and PPE.  Your staff and some volunteers are rarin’ to go.[4]   All you need to do is sort out the legal stuff.

But before worrying about how to fund it, or how to characterize the initiative in the budget, the first thing to consider is safety.

No matter what situation the library is in, a written safety plan, informed by OSHA and CDC guidelines, and ideally, confirmed with the local County Health Department, is the first priority for any such initiative.  Before approving funds, a board should review the plan for safety, and be assured that it is as well-developed as it can be (and again, if at all possible, confirmed by experts).[5]

So with that “safety first” caveat, here are the three solutions:

 

Solution 1: Acquisition and Distribution Only (No programming)

Objective: The library will acquire and distribute food and PPE, without any educational programming component or further conditions for participation (people can just stop by and pick up what they need).

Action Steps:

Step 1: Organizers (who could be board members, or staff, or volunteers…any combination is fine) develop and, with a county health official, affirm a safety plan for the distribution of the resources.  This plan should include how the items will be acquired, transported, and picked up, and what staff and volunteer resources will be used. 

NOTE: to ensure the safety of employees and protect the library from any liability, changes to routine job duties should be confirmed in a short letter referencing the safety plan.

Step 2:  Considering the need they hope to fill, and safety parameters, organizers develop a procurement plan, consistent with library policy and pages 50-58 of the Trustee Handbook, for the supplies to be acquired.  This plan should consider the appropriate sourcing and selection of supplies (PPE meeting CDC guidelines, food suited to re-distribution), and the need to follow relevant procurement laws.

NOTE:  On March 27, the Governor issued Executive Order 202.11, which suspends the public bid opening requirements of General Municipal Law Section 103(2) (of course, 103 only applies to purchases exceeding $20k…that would be a lot of PPE!).

Step 3: The Treasurer develops a budget recommendation for a budget change that will fund the procurement plan, and confirms to the board that any private funds to be used are not barred by donor terms (if all of the steps in this solution are followed, it will be a legal use of tax levy funds).

Step 4:  The board looks through its mission and plan of service and selects the language in those guiding resources consistent with a distribution for the goods to promote the health or general well-being of the community.

Step 5:  The board verifies the above steps, verifies consistency with bylaws and library policies, and sets a meeting under the modified procedures of the Open Meetings Law to adopt a customized version of the following resolution:

WHEREAS it is the mission of the [NAME] Library to [insert] and the plan of service for the library includes [insert];and

WHEREAS the state is currently in a state of emergency as a result of the ongoing COVID-19 pandemic; and

WHEREAS owing to the pandemic and state of emergency, the library’s area of service is in an unprecedented state of need with regard to fundamentals and supplies for personal safety; and

WHEREAS, owing to travel restrictions and the need of essential workers to serve our community, some people within our area of service may not be card-holding members of the community, but still be in need of supplies that will protect the their well-being, as therefore the general health of our area of service; and

WHEREAS the board finds it consistent with the mission and plan of service to adjust the current budget of the library to allocate resources to assist those within our community by supplying fundamental resources to enable the promotion of health and safety during a time of emergency; and

WHEREAS because the library is uniquely situated and widely regarded as a trustworthy and centrally located institution whose resources are freely accessible to all, and regards it as mission-critical to continue that role at this time; and

WHEREAS the library staff has identified a written plan for the safe allocation of such fundamental resources, and such plan has been reviewed by appropriate health officials; and

WHEREAS the library staff has identified and the board has duly reviewed a proposed plan for the responsible and compliant procurement of such resources, which is attached to this resolution and included in the minutes of this meeting; and

WHEREAS the Treasurer has verified that any private sources of funding do not bar the proposed procurement;

BE IT RESOLVED that the current budget be amended to direct [$amount] from [insert] to the acquisition and free distribution of food and personal protective equipment during the state of emergency, and during any period of recovery (the “Community Health Initiative Plan”); and

BE IT FURTHER RESOLVED that the acquisition of such resources listed in the Procurement Plan shall be conducted and accounted for per all the required provisions for procurement; and

BE IT FURTHER RESOLVED that the library shall effect the distribution of the resources only as set forth in the attached Safety Plan.

 

Solution 2: A Public Health Program

Objective: the library develops a program, consistent with its plan of service, to educate participants on PPE and the importance of good nutrition during a pandemic, and after a short educational program, makes supplies available.  This could even include innovative and fun ideas, like a recipe from a local chef, or instructions for canning food.

Action Steps:

Step 1: Organizers develop and, with a county health official, affirm the content of a short educational program, as well as the safety plan for distribution of the resources. 

Step 2:  Follow all the steps in “Solution 1,” but add this “whereas” clause to your resolution:

WHEREAS the library staff has [developed/identified] a short informational program on personal protective equipment and the important of good nutrition, and such program has been [reviewed by/endorsed by] appropriate health officials;

And add this further action to the resolution:

BE IT FURTHER RESOLVED that in conjunction with the distribution of fundamental resources the library shall promote the short informational program identified in the Safety Plan.

And finally…

 

Solution 3: The Partnered Program

Objective: together with another entity, and per a written agreement, the library allocates financial, and perhaps other, resources to a joint public health initiative to acquire and distribute supplies.

This one I can’t provide a template for: the permutations are just too diverse.  I can only say, when working with another entity, the library will need to consider every element listed in the above solutions: safety (first, always), mission alignment, employee needs, budget, and proper vetting of the plan by appropriate health officials.

Because of the risks related to compliance, a collaborative approach (unless it is just a donation to one of the above efforts…with that, take the money and get it done!) should be only through a written agreement that has been reviewed by the library's lawyer.  For this reason, it could be more cumbersome than other approaches, but in the event of a worst-case scenario, confirming all those details will be worth it.

 

For All Solutions

For any of the solutions I have outlined above, a critical contributor may be the library's insurance carrier. Right after the organizers start developing the plan for safety, someone should give your carrier a call, just to make sure there are no “exclusions” from the policy or conditions for your library to consider.

How do you check in with a carrier on this?  Just tell them: “Some lawyer who writes about library legal issues said we should check in with you before we do this.”

While your insurance carrier is probably used to the library developing innovative programming and serving a wide swathe of the population, the distribution of food and PPE during a pandemic is something they might want to weigh in on.  That said, in my experience, most carriers will encourage your initiative.  They might ask questions about where the distribution will take place, who is offering the programming, and how you are sourcing the supplies. 

Since the answers might impact your planning, it is better to call them early in the process, rather than just before the board meets (telephonically, as allowed by Executive Order 202.6[6]) to vote.

And who knows?  They might even have some helpful hints for you as you undertake to support your community.   This whole thing is keeping agents and adjusters awake at night, just like the rest of us.

 

Thank you

Okay, once I start waxing on about insurance, it’s time to pack it in.  I hope this was helpful, and I hope it can contribute to your library meeting the needs of your community.

Thank you for a great question, for your determination, and your dauntless innovation.

 



[1] This image his rhetoric inspired in my head--an army of GAGAS-wielding accountants, riding horses across libraryland, handing out fiscal frontier justice—makes me laugh now, too (but also cringe).

[2] In violation of Article VIII, Section 8 of the NY Constitution.

[3] One cardinal rule at “Ask the Lawyer” is “don’t reinvent the wheel.”  If library resources have already been used to develop solid guidance on a topic, we simply refer the member to that answer.  Lucky for me, librarians are innovators, so there are always new topics to address.

[4] Some libraries and library systems may have determined that, because they are regarded as a subdivision of government, the current workforce reduction orders do not apply to them.  Others will be organizing a program with the restriction that employees must (as of April 28, 2020) 100% work from home.  Still others will be coordinating terms of employment with a union.  This answer presumes your library is working within its own, unique parameters.

[5] By stressing this, I don’t mean to imply that the member is not thinking about safety (in fact, the care the member is taking about legal compliance suggests to me that they place a high priority on safety).  I just want to make sure that in any initiative to assist during this time of emergency, safety is the first consideration on the table.  At all times.

Tags: COVID-19, Donations, Emergency Response, Municipal Libraries, Taxes

Topic: Usage of personal devices at risk of legal discoverability - 4/27/2020
When working from a remote location, and you do not have time or the technology to take work devic...
Posted: Monday, April 27, 2020 Permalink

MEMBER QUESTION

When working from a remote location, and you do not have time or the technology to take work devices with you, can using your private devices (cell phones, personal laptops,etc.) open your devices up to discoverability for any legal actions by the district or organization you are working for? An example would be using your personal phone for Zoom (if your laptop does not have the capability) for a CSE meeting or other business that may or may not contain sensitive information.

WNYLRC ATTORNEY'S RESPONSE

This is a great question.  An important question. And unfortunately, an all-too-infrequently asked question…

Because the answer is “YES.”

The risks and cautions and caveats related to use of employee-owned technology are endless, but here are the top five in my world:

  • Educators working with FERPA-protected information should not store it on their personal devices. 
  • Health professionals working with HIPAA-protected information should not store it on their personal devices. 
  • Librarians working with patron information should not store it on their personal devices. 
  • Any employee working with content restricted by contract should not store it on their personal devices.
  • Any employee handling sensitive data (HR, fiscal, trade secrets, business plans) should not store it on their personal devices.[1]

This is my education/not-for-profit/library top five, but I could go on and on.  And while the first layer of risk posed by this issue relates to legal compliance, privacy, and security, underlying those primary concerns is the risk that in the event of alleged non-compliance, or another legal concern, the employee-owned device the information is hosted on could be subject to discovery—even if it is personal property.

What is “discovery?”  Fancy lawyer talk for being subpoenaed or otherwise brought in as evidence.[2]

How does a library, museum, educational institution or archive—especially one operating ad hoc from home as a result of pandemic concerns--avoid these concerns?

Here is a 3-pronged solution:

Prong 1: know your data.

Every institution should know the information it stores, and sort it by sensitivity. From there, policy (or at least, “standard operation procedures”) should inform how such information is stored, and when/how it might get transmitted and stored (if ever) on a non-proprietary device.

Here’s an example based on the different types of information stored and transmitted by libraries:  The templates for the brochures about a library’s story hour will generally be regarded as much less sensitive than the files regarding employees or patrons.  So, while transmitting the story hour templates from an institutionally-owned computer to a personal machine might be okay, you would never transmit the payroll or employment history records that way.  Policy and training should support awareness of the distinctions, and while the brochure templates might occasionally need to be accessed on employee-owned tech, the more sensitive types never should be.

Prong 2: know your tech.

Every institution should ensure employees who must access and store information regarded as sensitive have a work-issued account and device(s).  An inventory of that technology should be maintained, so the institution is aware of precisely where the information stored on it will be.

Barring that (whether due to time or budget), networks and resources should be set up to filter out the security risk of content going to and from machines with less robust security.

Knowing your technology is set up to meet the demands of your institution’s more sensitive data is key.

But there’s one more thing…

Prong 3: Work to minimize risk, even if you can’t eliminate it.

Don’t let “perfect” be the enemy of “good.”

Stuff happens:

  • A presentation where suddenly you can’t access a work file, but engineer a work-around using a Gmail address;
  • An emergency situation where a sensitive file has to be opened on a home computer;
  • A jump drive with both your photos from a family trip, and proprietary information, is uploaded onto a personal laptop.

 

Everyone[3] has had an instance where convenience triumphed over security.  But that should be the exception, not the rule.

Even during times of emergency response and sudden adjustment (read: pandemic, or a crisis at the location of your organization), awareness of an institution’s data and technology can be used to minimize the exposure of more sensitive information to risky situations—even if sometimes, the end result is less than ideal.  Admitting your institution is not perfect just means that in less reactive times, it must use the budget process and long-range planning to further reduce the risk, as time goes by.

And that is how to reduce the risk of employee tech getting subpoenaed in the event there is a content-related legal claim.[4]

I am grateful the member asked this question, because particularly right now,[5] this is a really common issue (although it remains a serious issue in less panicky times). So common, in fact, that I call it the “chocolate in the peanut butter” question.[6]

Why is this legal concern named after such a delicious combo?  Because the imagery really isolates the problem.  When it comes to using employee tech, the convenience can be all too seductive.  It can be, in fact, deliciously easy.

One reason to avoid this, among many, is because that technology could be subject to discovery.

But good risk practices can minimize this risk (even if you indulge on occasion). When working from a remote location, if you do not have time or the technology to take work devices with you, use of private devices, if necessary, should only be for only the lowest-risk content.  Further, to minimize the risk of data loss, non-compliance, and security, such use should only be after a qualified professional has determined it can be done with no risk, and employees are trained to keep things confidential, and remove proprietary content after it is needed.[7]



[1] By “personal devices” I also mean personal email accounts, Zoom accounts, cell phones, tablets, laptops, DropBox folders, etc.  All content handled by employees for institutional purposes should be on institutional resources.

[2] How does “discovery” play out?  Lots of ways.  For instance, once I was defending a person whose personal laptop was subject to “discovery” in a civil case.  We didn’t surrender the laptop.  Normally, that might have posed a problem, but in this case, the laptop had been destroyed during a fight at a concert many years before.  We had to produce the old police report to show that the property really had been destroyed, and we weren’t just resisting discovery.

[3] Okay, this is hyperbole.  Hopefully it’s not “everyone” (I’m looking at you, hospitals, therapists, and the IRS).

[4] This answer does not contemplate the related but distinct issue of employer resources being use for personal purposes, or to harass others…which is the dark mirror of this issue.  But good practices in one regard will lead to good practices in the other!

[5] Largely unforeseen, 100% order to work from home impacting most businesses.

[6] …although when I am feeling dramatic, I call it “data bleed.”

[7] Bearing in mind the deleted content is often never truly deleted…and thus could still be subject to discovery!

 

Tags: COVID-19, Emergency Response, Employee Rights, Privacy

Topic: Elections and Executive Order 202.13 - 4/22/2020
[Note; the text of this question was edited to remove the precise dates of scheduled election and ...
Posted: Wednesday, April 22, 2020 Permalink

MEMBER QUESTION

[Note; the text of this question was edited to remove the precise dates of scheduled election and notice.]

Executive Order 202.13 states:

"Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections."


My question is: our legal notices had been published indicating an open trustee position and petition deadlines were due March XX (none were filed) and the budget vote is April XX. The question is do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date? At the same time can we reopen the opportunity for people to file a petition to run for the board?

WNYLRC ATTORNEY'S RESPONSE

This question is from a school district public library.  Before answering it, I called the library director who sent it in.

Why?  Well, first, I wanted to introduce myself.  When a question has a lot of nuance and potential long-term ramifications, I like the member to know the answer comes from a real human being, not just a faceless attorney in Buffalo, NY.

Second, I wanted to check in on some details.  As other school district public libraries can attest to, the minutia of elections and budget votes can get very technical—as well as personal (and sometimes passionate). Getting those details right is both an art and a science.

And finally...I'm not gonna lie. Sitting alone in my office, with my treasured staff working from home, cut off from our normal busy but generally cheery atmosphere, I might have been a tad lonely.  Although anyone who works with me will tell you that half the time I am working in an introverted and ADD-infused cloud, four weeks of pandemic isolation have taken their toll. It was nice to call the member and connect at a human level.

How did the conversation go? I'll keep that part confidential.

Let’s take a brief aside to review the “Ask the Lawyer” model.

For members who use “Ask the Lawyer,” there are often two concrete results from the submission of the question:

The most common result is a post to the “Recently Asked Questions” (“RAQ”) site, which will contain generic guidance with no identifying details, so a general assessment of the legal issue can be shared with the largest possible impacted library community.

The second result, which doesn't occur for every question (but it's still pretty frequent) is a “confidential memo” just for the member and their council.  This “confidential memo” supplements the general input with confidential legal advice, and lets us address any unique details that pertain to only that member.

This is how the 3R’s maximize the resources (legal fees) used to get the legal guidance and advice, while also enabling timely services to their members.  And as I’ve reviewed, it is also how lonely attorneys can occasionally arrange a phone call to socialize about a legal need during pandemic-imposed isolation.

So, again…how did the conversation with the member go?  As I said, it’s confidential. But let's just say, when I call a librarian, I expect some good conversation, and this member did not disappoint.

And with that, here is my generic “Recently Asked Questions” input on this situation:

The first priority in assessing any matter related to an election or budget vote is to consider any past extraordinary details—such as a previous controversy or contested procedures.  As they say in the “Music Man”: You gotta know the territory.[1]  If there has been any past issue or hostility, planning to navigate a postponed election with those sensitivities in mind is wise.

Next (and this is essential), is setting up to ensure consistent and well-communicated support about the election from leaders and stakeholders: in this case, the board, the staff, the library’s system, the local school district, and (even if the election is not in their purview) the county Board of Elections.  This includes communication about the postponement, and the re-set proceedings.

Why is this a critical step? When you're sailing into uncharted waters, it's good to sail with a fleet, and to cross-check each other’s navigation.

And finally (but critically), before making any announcements or plans, check your charter, bylaws, and date of formation.  Some libraries will have provisions in them relevant to this situation, and per sub-section 8 of Section 260 of the NY Education Law (controlling school district public library elections), a library chartered before April 30, 1971 may have a bit more leeway in these matters, as a matter of law.  Further, your library may have its own notice requirements or procedures, on top of the base-line legal requirements.

Now, as to the present circumstances, let’s parse the relevant content of Executive Order 202.12:

Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

As if this whole exercise isn’t going to be complicated enough, the first thing I need to note is that, under Education Law Section 260 (sub-section 7), school district public libraries have between April 1 to the end of June to hold their elections.  So just be aware: EO 202.13 did not delay all scheduled elections (only those set for “April or May).  So, for this answer, we’ll only address elections set for April or May.

Next, we need to check in not only with Education Law Section 260, but its companion Section 2018, which addresses the filing of petitions:

Each petition shall be filed in the office of the clerk of the district between the hours of nine a.m. and five p.m., not later than the thirtieth day preceding the school meeting or election at which the candidates nominated are to be elected. [emphasis added]

And of course, Education law Section 2004, which requires notice be given:

“…at least forty-five days before said meeting, in two newspapers if there shall be two, or in one newspaper if there shall be but one, having general circulation within such district. But if no newspaper shall then have general circulation therein, the said notice shall be posted in at least twenty of the most public places in said district forty-five days before the time of such meeting.”

So, with all that, what are the answers to the member’s questions?

First question: Do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date?

My assessment is that the Executive Order is sufficient notice that the vote is postposed.  However, once the proceedings can be re-scheduled, a library will need to publish new notices. Further, it is important to note that the EO hints there will be “further directive as to the timing, location or manner of voting for such elections” coming from the Governor (or perhaps guidance from NYSED, upon direction of the Governor).

I imagine such “further directive” will take into account that typically, libraries must give at least 45 days’ notice.  But in any event, right now, school district public library elections are in a holding pattern, and the boards and leadership need to stay alert for further directions on next steps.

That said, a discussion with stakeholders, to ensure your library is ready to set its proceeding when the time comes, might be wise.  This could include a notice about the postponed proceedings, and direction as to where to look for next steps.

Here is a template:

Consistent with Executive Order 202.13, the [NAME] Library’s elections and budget vote are postponed, and the library is awaiting further direction from the state regarding rescheduling.  The Library will publish further notice and information to the public regarding the election as soon as we are able.  Questions about elections in [COUNTY] County can be directed to the [COUNTY] County Board of Elections at (###)###-####.

Second question: Can we reopen the opportunity for people to file a petition to run for the board?

This is fascinating.

The way I see it, 202.13’s “postponement” of elections means the thirty-day deadline for filing a designating petition will automatically be re-set to thirty days before whatever the new election will be.  This is because under Education Law Sections 260(8) and 2018, the deadline for filing is not a fixed date, but a deadline calculated based on the date of the election.  So, I think being ready to ask people to step up and get designated so you have sufficient nominees—especially if there were none duly submitted by the last deadline—is a good idea.

Of course, right now all collection and filing of designating petitions are also “postponed” (see the first excerpted paragraph of the Executive Order).   And the deadlines for petitions are going to be tough to hit before the July 1 statutory deadline. And at some point, there may be a decision that previous submissions will not be re-opened.

The next “directive” on this issue will have to tackle the issue of meeting the notification and petition filing deadlines, as well as the implications for those libraries that were in the notice period, and those that were not.

This is where conferring with the local Board of Elections officials, and the school district, even if they do not oversee your library’s elections, will be so critical.  They will have the insight and probably some inside information to share about how this will be configured.  And for those libraries with a lawyer, this is the time to involve them (before final decisions are made).

To put this in context, right now although critical, the election is probably only one of the numerous high priority issues your library board is considering. First and foremost is likely the on-going well-being of the library and its role in the anticipated recovery of your community.

With that in mind, I suggest any board facing this situation also review the guidance on using a crisis management for public libraries, and factor the monitoring and messaging around this issue into their response plan.

If and when we get an update or “further directives,” we’ll post any update to this answer.



[1] Has anyone ever done a poll to see how many librarians have been serenaded with the “Marion,” song?  And taken a further poll to see if it is now regarded as harassment?

 

Tags: COVID-19, Emergency Response, Executive Order, Public Libraries, Elections

Topic: Circulating telehealth kits and disclaimers - 4/17/2020
Our library is considering adding a circulating telehealth kit to our collection for patron use. W...
Posted: Friday, April 17, 2020 Permalink

MEMBER QUESTION

Our library is considering adding a circulating telehealth kit to our collection for patron use. With the pandemic and telemedicine being the current norm, the goal is to fill a perceived need within our community. The proposed kit would include medical supplies including a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment. My question concerns any disclaimers that would be necessary to add to the kit as well as liability issues for the library if we were to implement this.

WNYLRC ATTORNEY'S RESPONSE

I love learning about new assets communities can access through their library.  Tools, ties, seeds, toys…this list is endless.

This is the first question “Ask the Lawyer” has received about health monitoring devices and medical supplies, and the member has rightly pointed out that there is a lot to consider in such a venture.  How can such lending be done with an emphasis on safety, and limiting legal risk for a library?

But before we delve into disclaimers and liability (yes, a disclaimer is going to be needed), let’s confirm some terminology.

In New York, Telehealth is defined[1] as “the use of electronic information and communication technologies to deliver health care to patients at a distance.”

Meanwhile, Telemedicine is defined[2] as “two-way electronic audio-visual communications to deliver clinical health care services to a patient at an originating site by a telehealth provider located at a distant site.”

In other words, Telemedicine is also Telehealth--but Telehealth is more than Telemedicine.  “Telehealth” is like the largest figure in a Russian nesting doll set, with Telemedicine (audio-visual communication of services) contained within—but separate.

The equipment being considered by the member are equipment for Telehealth, not the transmission of Telemedicine.  This has a lot of ramifications for liability and legal compliance, so it is important to take care in making the distinction from the start.

When considering the cataloging and lending of equipment for Telehealth, there are two other critical terms:

Store-and-Forward Technology, which is defined[3] as “asynchronous, electronic transmission of a member's health information in the form of patient-specific pre-recorded videos and/or digital images from a provider at an originating site to a telehealth provider at a distant site.”

…and…

Remote Patient Monitoring, which is defined[4] as “the use of digital technologies to collect medical data and other personal health information from members in one location and electronically transmit that information securely to health care providers in a different location for assessment and recommendations.”

“RMP,” as it is also called, includes the collection of information such as vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings; the type of monitoring the devices in the member’s question are about.

Okay, with that established…

YES, in lending such equipment, there are some concerns about risk and liability.  YES, a disclaimer is a good idea. And there are a few other considerations, too…related to procurement, cataloging, and lending (but in the end, all relevant to the issues of risk and liability).

How does a library address those considerations?  There are many details, but here is a process to systematically take them on:

Step One:  Make it incremental

What do I mean by “incremental?” 

I mean, instead of cataloging a kit of equipment as a single item, each item in the kit (and perhaps the bag itself) should be cataloged as a separate item.  That way, when the patron borrows the bag and the equipment, they will borrow them as separate components…the way another patron might check out the entire “Harry Potter” series and a DVD of “Goblet of Fire.” [5]

Why? Because each piece of health-related or medical equipment comes with its own set of legal terms (warrantees, disclaimers) and operating instructions.  By lending that equipment on a piece-by-piece basis, rather than in kits with multiple components checked out as a single unit, a library will be able to use that level of detail to take the liability-limiting and risk management steps I describe below.

 

Step Two: Know the devices

The member’s question lists the following telehealth equipment: “…a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment.” 

This list makes sense, since “remote patient monitoring,” as described by the New York Department of Health,[6] uses instruments to measure vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings, so that information can be used to provide telemedicine.

How can a library “know” the equipment?  Before a Telehealth device is added to a catalog, a library should a) confirm it is commonly used for telehealth, b) confirm it meets your library’s procurement requirements; c) confirm that the precise device is registered with the FDA, and d) use the FDA site to confirm it has not been recalled.

The best place to do this is: https://accessgudid.nlm.nih.gov/.

 

Step Three: Plan to include the instructions

If the device comes with instructions, ensure the physical copy of the instructions is lent along with the device,[7] and generate a link or QR code so the instructions (in an ADA accessible format) can easily be found online.

This is so the borrower is empowered to use the device per the manufacturer’s instructions.  This is a key component of limiting the risks associated with lending devices of any kind—including health-related equipment.

 

Step Four: Set the Requirements for procurement

In addition to the Procurement Policy your library must follow, the following requirements should be in the RFP or RFQ for each device:

  • Will not transmit data OR any data transmission capability the device has meets current transmission requirements for telehealth;
  • Any digital memory the device has must be capable of deletion with no ability to recall the prior data;
  • Any device supplied must be registered with and thus listed on the FDA’s medical device database (and searchable by name or number);
  • There should be no parts intended for insertion into the body;
  • There should be no need for replacement parts;
  • There should be clear instructions for cleaning the device between uses, and those instructions should be a process staff can perform safely;
  • The purchasing decision should consider if/how the product is powered (battery, charging station) and plan to support that during lending;
  • There should be no safety recall.

 

Step Five: Be ready to continuously monitor for recall

This is critical—and why any device included in the collection should be registered with the FDA.  Prior to lending (every time), it should be confirmed at https://accessgudid.nlm.nih.gov/ that the device has not been recalled by the FDA.

 

Step Six: Confirm Functionality after Every Return

This, too, is critical.  Prior to lending (every time), it should be confirmed that the device is functioning properly, as described by the product’s instructions.

 

Step Seven: Consider bringing in a ringer

Prior to making the equipment ready for lending, consider launching the collection in connection with a public health partner in your community.

Why?

The ability to borrow a thermometer, or a blood pressure cuff, or pulse oximeter, could be a game-changer if a person’s own equipment is stolen, damaged, or lost.[8]  For people in rural areas who must order equipment and wait for delivery, it could facilitate the immediate start of Telehealth care, or ensure continuity of care while a replacement is on its way.  This project you are considering could save lives.

That said, people should only use telehealth equipment in connection with ongoing care from their health care provider. 

I am well aware of the cruel irony in this caveat.  Not all people have access to reliable health insurance or ongoing healthcare,[9] and thus might need to DIY their care with telehealth devices. But the concept of telehealth ONLY works if it is in conjunction with a health care provider. 

No one should be borrowing a library’s telehealth resources to use them in a health care vacuum.

This is where a public health partner could come in.  If the equipment is linked to information about a clinic or other local health care provider in your region who can help a patron connect to care, you can mitigate this risk, and urge the proper use of Telehealth equipment, while respecting the privacy and autonomy of patrons. 

This awareness should be part of your disclaimer.

 

Step Eight:  Yes, you should include a disclaimer

…and it is on a device-by-device basis.

Of course, any disclaimer should only be adopted after review by your library’s attorney AND insurance carrier.[10]  But here is a place for them to start:

“Prior to being borrowed, this equipment has been confirmed as not under recall by the United State Food and Drug Administration (“FDA”), and to be functioning per the manufacturer’s specifications. 

However, the [NAME] library cannot confirm that the equipment will remain functional or unrecalled while it is on loan.  To determine proper functioning, please refer to the instructions, and check the recall status of the device at at https://accessgudid.nlm.nih.gov/.

This is borrowed equipment.  You must follow the cleaning directions in the instructions before using this equipment. 

Please review the instructions and notify the library immediately at (#####) in the event the equipment is not functioning as the instructions describe. 

Use of this equipment should only be in conjunction with service from a licensed health care provider familiar with your medical needs. 

In the event you do not have access to a licensed health care provider, call [community health partner] to inquire about health care in the [NAME] region.  The library has confirmed that this resource can assist you in finding care.

In the event of a medical emergency, dial 911.”

 

Step Nine:  (If You have Room) Let them Know Their Rights

In the State of New York, patients being treated through telemedicine have certain legal rights. [11] If feasible, it would be good to foster awareness of these legal rights when lending telehealth equipment.  

Here is a sample notification:

This equipment is for temporary use when being treated via Telehealth.  It should only be used in connection with service from your health care provider.

If you are being treated by telehealth in New York, here are your rights:

Any practitioner starting a course of telemedicine should provide a patient with basic information about the services that they will be receiving via telehealth, and obtain their consent to participate in services utilizing this technology. 

Telehealth sessions/services may not be recorded without the member's consent.

Patients have the right to refuse to participate in services delivered via telehealth and must be made aware of alternatives and potential drawbacks of participating in a telehealth visit versus a face-to-face visit.

Patients must be informed and made aware of the role of the practitioner at the distant site, as well as qualified professional staff at the originating site who are going to be responsible for follow-up or ongoing care.

Patients must be informed and made aware of the location of the distant site and all questions regarding the equipment, the technology, etc., are addressed.

Patients have the right to have appropriately trained staff immediately available to them while receiving the telehealth service to attend to emergencies or other needs.

Patients have the right to be informed of all parties who will be present at each end of the telehealth transmission.

Patients have the right to select another provider and be notified that by selecting another provider, there could be a delay in service and the potential need to travel for a face-to-face visit.

 

Step 10:  Plan and budget to clean the Equipment Upon Return

However the instructions state the equipment should be cleaned, it must be cleaned (every time).  Developing a protocol to do this safety is something your library must consider during both procurement and budgeting for the staff time needed to lend and maintain the equipment.

 

And that’s it! 

Okay..I admit “it” is “a lot.”  The big take-away here is that, in addition to considering liability concerns and a disclaimer, your library must ensure it has the staff, storage, and maintenance capacity to engage in appropriate risk management.  That will take some planning, and some resources beyond simply buying the equipment.

That said, I suspect it will be worth it.[12]

I hope a worthy initiative like this can find a strong community health partner in the member’s region.  With a health care supporting your staff in selecting the right equipment, choosing the best brands, and pushing out information about patient rights and public health, this program could truly save lives.

Please let me know how it goes.[13]

 



[1] NYS Public Health Law § 4406-g (2).

[2] NY CLS Pub Health § 2805-u 1.(d).

[3]  NYS Public Health Law § 2999-cc, 6.  PLEASE NOTE: if your library is considering providing equipment to assist with “store-and-forward” a rigorous ethics, security, and HIPAA compliance check should be part of procurement.

[4] NYS Public Health Law § 2999-cc, 7.

[5] In Harry Potter, they practiced telemedicine via the Floo Network. (P.S. If you think I threw in this Harry Potter reference to enliven a dull list of footnoted citations, you are right!).

[7] I appreciate that this may involve the use of a laminator or other cool process libraries use to unnaturally extend the life of print media.  Wait until you see Step Ten.

[8] Or if the patron is in a coverage dispute with their carrier.  I have had some experience with this; not fun.

[10] Your carrier should also be apprised of the undertaking, in general. They may even have some helpful tips for you in developing the lending program.

[11] As set forth in the NYSDOH guidance document found on April 14, 2020, at https://health.ny.gov/health_care/medicaid/program/update/2019/2019-02_speced.htm#definition, with citations to relevant laws and regulations.

[12] As I write this, the state is still on “PAUSE” due to COVID-19.  The use of telehealth during the time has SOARED.  And reading projections for the future, it will only increase.

[13] Adams@stephaniecoleadams.com or call at (716) 464-3386.

Tags: COVID-19, Disclaimers, Emergency Response, Public Health, Telehealth

Topic: 501c3s and applying for CARES PPP - 4/16/2020
We are a library that is a hybrid government agency (special taxing district) and a 501(c)3. Does ...
Posted: Thursday, April 16, 2020 Permalink

MEMBER QUESTION

We are a library that is a hybrid government agency (special taxing district) and a 501(c)3. Does being a 501(c)3 override local gov’t agency status as far as applying for the CARES PPP? We've reached out to several attorneys and even the SBA and we get opposite answers. Help!

WNYLRC ATTORNEY'S RESPONSE

I have spoken with many public libraries about their experience considering and applying for the different aid packages currently being offered in the wake of the pandemic.  I also have the benefit of working with an associate attorney who once worked for the SBA, closing disaster loans.

So, in addition to the guidance being offered by New York State Library Development and the New York Library Association, which I encourage all libraries to pay ongoing attention to, I have two things to add:

First, as Mr. Rogers would say:

Remember, you are special.

Listening to the different experiences, and most importantly, reading the law, regulations and guidance, I can say that each and every library, library system, and resource group in the state of New York is differently situated under these aid packages, including PPP.

The is because, while the State of New York has created uniform frameworks for fostering libraries, within those frameworks, there is great room for self-determination and autonomy.  That “room” means that every library has a different business structure, banking arrangement, budget profile, cash flow situation, grant and contractual obligations, approach to payroll, personnel policies, union obligations, commitments to the community, and plan of service. 

This array of approaches and obligations create a unique identity that will be uniquely impacted by the current crisis.

Which brings me to my second point, which is based on my favorite baseball phrase:

Run it out.

Run.  It. Out.

What does that mean?  For those of you who don’t play baseball, it means…

No matter how soft a pop fly you just hit--no matter how easily the pitcher just snatched the ball out the air and is sending it hurtling to first—once the ball is in motion, drop your bat, and run the bases.  Even if you think you can’t possibly make it home.  Even if you are pretty sure you’ll be tagged out before you take 5 steps.  Even if you suspect the catcher is laughing at you.  If your library’s budget or ability to operate is being negatively impacted by COVID-19, your board owes it to the library and its community to explore every avenue.  That includes PPP, and other emergency lending.

“Running it out,” of course, should not happen in a vacuum.  It should happen as part of a well-considered, diverse plan for dealing with the current crisis (to that end, see my “Ten Things” column about boards and emergency response).  But PPP and other aid should not be off the table until…they’re off the table. 

To do this, be ready to assess the library’s fiscal position.  Are you facing a pinch now, or more worried about next year?  You also need to work closely with your bank, and be ready for both of you to closely assess your special identity (charter, bylaws, policies, payroll, obligations, cash flow) vis-à-vis the SBA’s rules for application.[1]

For some of you, your library will get tagged out before you round first base.  Your bank may decide you don’t qualify, or your board may even assess that that PPP or other emergency relief aren’t for you.  But others of you just might make it home.

And if even only 5 libraries in the State of New York qualify for PPP and are able to help their communities recover from the impacts of a pandemic, because they did everything they could to get the aid they need to function, then the effort will be worth it.

Does your library qualify for PPP?  If you need it to stay in the game: run it out. 

 

Tags: 501c3, COVID-19, Emergency Response

Topic: Using article from personal CEU subscription - 4/13/2020
I have an instructor who asked if it would be violating copyright infringement if she shares artic...
Posted: Monday, April 13, 2020 Permalink

MEMBER QUESTION

I have an instructor who asked if it would be violating copyright infringement if she shares articles from her personal Continuing Education Units (CEU) account subscription with her students as class reading assignments.

WNYLRC ATTORNEY'S RESPONSE

NOTE: This question arose during the scramble for online resources during the nation’s response to COVID-19.  Click here for a full array of COVID-19-related questions about library operations and copyright matters impacted by pandemic response.

It might be copyright infringement, but there is another concern: it could also violate the terms of the contract (the subscription agreement) between the teacher and the CEU provider.

The problem is that not only do such subscription sites have basic, contractual terms governing the actions of all subscribers, but the individual articles may have different (less or more restrictive) terms, too.

For example, I tooled around IACET (a major CEU provider)’s website and found a wide range of copyright and licensing terms.  In some places, IACET had a very strict license that bars sharing materials.  In other places, I found language encouraging IACET’s leadership to adopt language promoting the sharing of articles, particularly those that reinforce IACET’s standards and values.

My best guidance must be: the teacher should evaluate their personal subscription agreement and terms for each article on a case-by-case basis.  For instance, it looks like IACET has taken a variable approach, so some content might actually be free to use.  Other material might be licensed for purposes of instruction—but only to the institution holding the license.  Each CEU provider will differ.

Only by reviewing the teacher’s contract with the provider, and the relevant content terms, can this question be answered.  And in these difficult times, calling them to ask for permission for the duration of the state of emergency might work.

Barring that, I am always very wary of any solution to educational content needs that relies on the individual instructor, rather than the institution (who, among other things, has better insurance), to take risks, so hopefully the school can assist with getting the right content, or finding a solution under copyright Section 108,[1] 110,[2] or 107.[3]

 

 



[1] Exceptions to infringement for libraries.

[2] Exceptions to infringment for educators.

[3] Fair use.

Tags: Copyright, COVID-19, Digital Access, Emergency Response

Topic: Top 10 Actions a NY Library Board Can Take to Foster a Library's Mission and Ensure its Viability During the COVID-19 Pandemic crisis - 4/2020
...
Posted: Thursday, April 9, 2020 Permalink

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A note from the author:

When I was the in-house attorney at Niagara University (2006-2017), I had the privilege to be trained in the National Incident Management System’s Incident Command System (ICS), the nation’s system for organizing crisis response.  At NU, I also co-authored the Pandemic Response Plan, and along with the IT Department, developed a system for not-for-profit “enterprise risk management” (addressing mission-threatening risks). 

Through that work, I gained familiarity with the mechanics of pandemic response and recovery, and managing related issues. 

Now, in collaboration with WNYLRC and other regional library councils, my law firm provides the “Ask the Lawyer” service to libraries.  On a regular basis, I answer questions from libraries about board operations, property issues, and employee issues.  Through that work, which I consider a great privilege, I have gained familiarity with New York’s libraries (although there is always more to learn), and the strong, diverse people who run them.

In addition, on a regular basis, I call upon the excellent resources from New York’s robust community of legal, regulatory, and career professionals, including the invaluable “Handbook for Library Trustees in New York State.”

This “Top Ten” guidance is the distillation of all that experience, combined with what I know about the COVID-19 situation as of April 7, 2020.  I hope it is helpful.  If you identify ways to make it better, or clearer, or easier to implement, please write me at adams@losapllc.com.

During a pandemic, all we can do it our best…on limited time.

I wish you strength as you lead your library through this crisis.

--Cole

 

So, what are the “Top Ten Actions” a library board can take to foster a library’s mission and ensure its viability during the Covid-19 pandemic crisis?  Here you go:

#1.  Commit for each member to perform board work no less than weekly

Why?  As you will see in the Remaining 9 items, even if your library is closed or operating at less than full capacity, there is a lot you can do.

 

#2.  Set a “Crisis Response Goal” defining how your library will handle the current emergency and eventual recovery period.

We all know the COVID-19 pandemic, and our communities’ recovery from it, will not be over in April… or May…or June.   It will affect us long beyond 2020.  The impact will be deep and far-ranging. 

Knowing this, we also know that a community library, open to all, will be a critical resource for every member of your community in the times ahead.  With that in mind, defining how to preserve, promote, and connect that resource to its area of service is this critical--even at this time of reduced operations. 

How do you do that?  It starts with a simple statement by your board's leadership, known as a “Crisis Response Goal.”

How does a board develop a Crisis Response Goal?  By envisioning and articulating what it wants to do and be throughout and after the crisis.

What does that look like?  A good Goal articulates and reinforces your library's unique role in the community, and sets forth broad ways it will fill that role during this unprecedented time (the Goal is not where you worry about minutiae).

An example Goal is:

During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”

The key is to focus on what you will do (not how you will do it).

The template to create your library’s Crisis Response Goal is:

During and after the COVID-19 pandemic, The [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .______________________________________.”

And that is your Goal…your library’s statement to the world about what it will be and do through this crisis. 

The remaining items on this list are how your Board will rally your resources to make the Goal a reality.

 

#3.  Use a “Crisis Response Team” approach

At this time, an effective board is concerned about numerous things: The safety of the library and the community it serves, the fiscal impact of the current crisis, the reduced or eliminated operations of the library, its relationship with its community, making appropriate decisions about employees, the stewardship of the library's physical assets, and how to meet its plan of service.

No board can meet as a single body and address all of these things effectively, even if they meet once a week. There would be too many voices at the table (or too many people being seen and not heard).  There would be no room for assessing facts and novel thinking.

How does a board handle this multi-faceted crisis situation? Create teams.  

What will those teams do?  Well, at least one person who can navigate the OSHA website should have primary and consistent responsibility for safety. At the same time, people with the fiscal skills and experience must gather to assess the immediate and long-term impact of the situation on the library's finances. Meanwhile, another group with business and HR skills and experience should focus on mission and plan of service (“operations”). And finally, a person or small group with communications skills should have primary responsibility for thinking about public relations and outreach to the library's primary stakeholders.

Finally, one or two people should play the role of team leader.  The Team Leader’s primary role will be connecting the work of each group, and the professional staff, to enable critical decision-making and developing a response plan.

The Team Leader will also ensure the library director is supported as they continue their duties under a time of duress, that the director is positioned to contribute to the work of the teams as needed, getting them vital information, and collaborating on the formation of the library’s strategic response.

The rest of this guide is about creating teams to use this approach.

 

#4.  Assess your board’s capacity, and reinforce it where needed

When considering a crisis response team approach, which organizes a board into small sections working towards the same Goal, it is important to be honest about your capacity.  As a group, you need to take stock of your board.

Many of the skills and attributes that make someone a valuable board member in non-pandemic times (fund-raising, deep knowledge of books and culture, ability to rally volunteers) might not be the only things needed during the initial phases of a pandemic response. 

Further, many boards, faced with this crisis, may be feeling overwhelmed. Unless a person has guided a not-for-profit organization through a crisis such as a fire, major PR event, or disaster such as 9/11, the experience of the average board member might be tested by the current situation.

That is OK. We are all feeling tested.

The good news is, if your board does not have the capacity to assemble teams with the experience listed in #3, your board is allowed to add non-board members to non-voting committees, or to invite them to meetings as guest advisors.  Now is the time to bring on a few “ringers.”

How can that be done?

If you don't have anyone on your board who feels up to the task of considering safety first at all times, invite someone on who has experience with OSHA regulations or standards from the New York Department of Labor.

If your fiscal team doesn't have access to a seasoned accountant or CPA who can assess the current budget, run fiscal projections, and help you develop models for your library's financial options, see if you can find one who will donate some time to your library.

If your board does not have someone experienced in business, employee relations or human resources, and you need to take action regarding contracts and employees, bring a new person on.

And if your board doesn't have someone with public outreach skills, perhaps you can find someone with appropriate experience from within your own community networks—or reach out to someone new.

As you assess your board’s capacity and look to shore up any needs during this time of pandemic response, remember this: this is a special time.  Some people may be working more than ever, and not able to help out more, or at all…while others are finding themselves under-occupied.  Small business owners on your board may not be able to help at all.  Others may be on unemployment and able to step into the gap.  ALL OF THAT IS OKAY.

If you identify a gap in your board's experience, it may be that you can fill it just by asking. The important thing is to be honest about what your board can do, and not fudge it.

 

#5. Form your board’s Safety Team

The COVID-19 pandemic is causing incalculable impact on business operations and the functions of day-to-day society. However, it remains first and foremost a public health crisis. That is why, if you choose to use a crisis response team approach, the first team your board should appoint is the team responsible for safety.

What is the “Safety Team’s” role?

When the full board is considering a team's recommendation, the safety team’s role is to ensure the board fully considers the safety implications of any one course of action.

For instance, if there is a decision to have one library employee check the mail every day, the safety team is asking: Is this safe? Is there a way it could be made safer?

If your Safety Team has the time, they should also be available to your other teams during the later phases of crafting a recommendation, so work is not wasted.  In addition, your library director should at least be a consulting member of this team, since they are in charge of the staff, and will be responsible for putting emergency procedures into effect.

Your Safety Team will spend time on public health resources such as the CDC website, the OSHA website, and will monitor your county health department's recommendations and advisories. In any action related to your library's response, they are only thinking about safety and the health of the community.  This includes the health and safety of employees, volunteers, and the board.

While other members of your board, on other teams, may be worried about fiscal viability, public relations, or operations, your Safety Team is always putting safety first. This includes planning for the safety and well-being of your community when your library is contributing to your community's recovery.

The Safety Team takes on this primary responsibility so the other teams can focus on their roles, while the full board knows it is set up to always put safety front and center.

 

#6. Form your board’s Fiscal Team

The current crisis is going to hit public libraries in a variety of ways, and for many, the fiscal hit will be especially hard.

While some communities will immediately rally around their library as a critical central resource, others may use the crisis as an opportunity to seek budget cuts and de-funding. Libraries that have relied on fines and hold fees as revenue sources will find those sources diminished. And always, there is the question of how to compensate and retain staff at this unprecedented time.

This is why appointing a Fiscal Team with the skills to assess the current situation, run projections, reach out to fiscal sponsors, and develop plans for the financial stability of your library is key. 

While this group can be small, consisting of perhaps two or three people, it must be mighty. As mentioned in #4, at least one member—who might perhaps be an invited advisor or non-board committee member—should have seen a not-for-profit institution through a fiscal crisis in the past.  You will need this person’s wisdom and perspective.

The immediate tasks of this group will be assessing the impact of the situation and developing a short-term plan for financial viability. That short-term plan shouldn't go much further than the end of April or mid-May. After that, the plans will need to consider various contingencies. For this reason, the group should include, or regularly invite, the library director.

Another immediate task is assessing the stimulus money your library may be able to rely on. For some libraries, this will include the Payroll Protection Plan, and other aid. For others, it may be collaborating with government funders to ensure some portion of government aid will be allotted through your government to your library.  Identifying these options is something that group should focus on throughout mid-April.

It is this last area—identifying options and contingency plans-- where the team approach becomes truly valuable. While your Fiscal Team will be assessing your library's needs and the possible ways to obtain those needs, the Team Leader and/or Outreach team will be forging connections with funders to coordinate identified assistance that is needed.   Between the team leader and the Fiscal Team, it is important to determine who will meet with municipal fiscal authorities on a regular basis (something I encourage, if your library is dependent on a tax levy from a sponsoring municipality). 

It is the job of the Fiscal Team to provide solid, reliable, and situationally-adjusted financial information and options for the other teams (especially Operations) to work with. 

 

#7. Form your board’s Operations Team

A bit of background on this one…

The state of New York has always encouraged local autonomy for libraries. This is a wonderful thing that means wherever you go in New York, there are unique and special libraries waiting to be discovered.

This also means that every library in our state is facing a slightly different situation when it comes to pandemic response. Rural libraries are facing different challenges than urban libraries. Suburban libraries in one county will face different challenges than suburban libraries in the next county over. And this isn’t just about location—it’s about service.  While one library might be a beloved source of donated food, another may be the community's lifeline to certain key services.   Another library may be a vital source of senior programming, while in another community, it’s the toddlers that will be missing out.

Considering this diversity, there is no one-size-fits-all package for developing a team that considers a library’s operations…you are all just too darn unique. 

So with that background, what is the role of an Operations Team during the crisis response? It considers the critical operations of the library, and develops plans to adopt or carry on those operations during a time of crisis response and—critically--recovery.

This starts with an inventory of operations. 

For instance, it is the responsibility of the Operations Team to consider the impact of the situation on and develop solutions for staff at this time.  And while this work must be informed by both the Safety Team and the Fiscal Team, the Operations Team is the one that should have the human resources or labor law experience to consider how to continue or adjust the employment terms of the staff at this time period. 

Another task will be to review the routine activities of the library, and determine which ones will be suspended and which ones will be adapted and carried forward into the present situation, and how that will be rolled out.

It is important to emphasize that the Operations Team will not make these decisions, but rather, informed by the Goal, and with the input of the director (just as with any operations planning process), will bring forward well-developed recommendations for the consideration of the full board.

Many of the items the Operations Team will consider will have implications for safety. The operations team should do their best to build consideration of safe practices into their recommendations, and only then have things reviewed with a fresh eye by the Safety Team.

Operations, because its span will be large, might be the largest team, and for reasons of efficiency, may wish to divide into sub-teams, and will require the most input from the director, who may also bring in further input from the staff. One way would be for some members to take the lead on operations during the emergency, while the rest develop ideas about how the library can help during recovery.  

 

#8.  Designate your board’s Crisis Response “Team Leader”

The purpose of breaking the responsibilities for a crisis response into teams is to allow work to happen with deep focus and great frequency. It is also to ensure that quick, decisive and well-informed action is not bogged down in the inefficiencies of a large group.

That said, a library's board must continue to function as a board, and per the bylaws that govern it.

Pulling all of these considerations together—effective use of teams, adherence to bylaws and policies—is the job of the Team Leader.

A natural fit for the Team Leader might be your library's board chair.  However, if your board chair is a CPA and is best suited to doing the work of leading up the fiscal team, or will be spending the bulk of their time coordinating necessary aid with representatives from municipal government, it is appropriate to consider designating another board member as Team Leader.

What does the Team Leader do? The Team Leader pays attention to what is happening with each and every team, and connects and pulls their work together as needed. They also identify when matters are ready to be presented before the full board for discussion and a resolution, and ensure the work of the teams is done in healthy cross-collaboration with the work of the director.

This role does not have to be played by the board chair.  This role should be played by someone who has the capacity to connect regularly and meaningfully with each team, who understands the proper dynamic between a board and paid staff, and who has the skills to identify when a matter is ripe for full board consideration.  They should know the bylaws and library policies, and make sure the use of the team structure does not depart from them.

A good team leader, at this time, also needs to be accessible through phone, e-mail, and video conferencing.  If a person can’t reach out in multiple ways, they might not be the best person to lead the teams.  As with everything else, THIS IS OKAY.  Regardless of the role a person plays, it is all part of your fiduciary duty to support the best interests of the library.

(P.S. on that last part: there is nothing wrong with a Team Leader designating an out-of-school child or grandchild as the “Library Crisis Response Team Leader Tech Support,” something that would look good on a future college or job application!  Just make sure they can take the role of setting up calls and meetings seriously.  My 15-year-old has been pressganged into helping with many a meeting.).

 

#9. Designate your board’s Public Relations Team

The impact of this crisis on your library will also have a huge impact on your community. The energy of those who support and are supported by your library (the “stakeholders”) need to be channeled to mitigate that impact as much as possible.

How do you harness that energy?  Just like your Operations Team, the role of your PR Team is going to change depending on the unique situation of your library. However, the overall goal of any PR Team is to ensure that the “Goal” of the library, and the things it is doing to achieve that Goal, are articulated to the stakeholders in an accessible, regular and reliable way. 

For example, if your Goal is:

During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”

It is the job of the PR Team to get that message out to stakeholders in a way that will be heard. This doesn't mean just repeating the goal everywhere verbatim (a good Goal never sounds very sexy).   Rather, it means getting the message out in a way that will be actively observed.

For example, a plain-language way to promote the Goal above would be putting a poster on the front of the library that says “Our doors are closed but our librarians are here for you!  Find us at @@@ or call ######!” Things like this are the job of the PR team (unless your library is so vast you have in-house PR, in which case, I doubt your library needs this “Top Ten” list in the first place).

It is also the job of the PR team to harvest all the information about how the library is reaching out to the public at this time.  That way, when the time comes for budget review and fund-raising, your library will have a solid archive of examples about how it is invaluable. For this reason, consider having a staff member as an advisory member of this team—or even have a staffer perform this function as part of their adjusted job duties.

Because it must be nimble in its messaging, the PR Team is the one team that should be empowered to take action without a board vote. The “Crisis Response Team Formation Resolution” presented below takes that into consideration.

 

#10. Be Just Good Enough—and form a Crisis Response Team

Here are some hard truths:

  • There is no perfect way to handle a pandemic response.
  • No board will be totally up to this challenge. 
  • There are things you will fail at.

But by using a Crisis Response Team-informed model, you will set your board up to succeed more than you fail.

If you choose to use this approach, my advice is to not just recycle the formations of your standing committees of the board. Consider the value of shaking things up, inviting “advisory” members, involving the director as needed, and organizing your teams to spur new and novel thinking.  Consider carefully who is reaching out to your library system, your council, and your elected leaders.

For a small board, there will by necessity be some overlap in teams. That is fine. Just be careful to not overload any one person. This situation will be a marathon, not a sprint.

In the event you determine a crisis response model will be helpful to your library in the coming months and even year ahead, here is a resolution to enact it:

Crisis Response Team Formation Resolution

WHEREAS the current state of emergency due to the COVID-19 pandemic is still in effect as of [DATE OF MEETING]; and

WHEREAS the [NAME] library has already had to consider the impact of the state of emergency on the library; and

WHEREAS the board anticipates the state of emergency and following recovery period will impact library operations for the remainder of 2020; and

WHEREAS the board has determined that the emergency and recovery period will require and enhanced model of leadership to ensure the library emerges from the emergency and recovery period in a manner that best prepares it to serve the needs of the community and fulfill its mission and plan of service;

BE IT RESOLVED, that during and after the COVID-19 pandemic, the Goal of the [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .

______________________________________;”and

BE IT FURTHER RESOLVED, that the board shall use a “crisis response team” model until it votes that the period of recovery is concluded and such structure is no longer needed; and

BE IT FURTHER RESOLVED that the board’s Crisis Response Team Leader, responsible for coordinating the work of the different teams and identifying when solutions are ready for board consideration and resolution, shall be NAME, and the designated back-up Team Leader shall be NAME; and

BE IT FURTHER resolved that a Safety Team consisting of NAME and NAME shall be responsible for maintaining awareness and raising the issue of safety in all actions related to the board's response to the pandemic emergency and recovery , including the safety and well-being of the community we serve and those the library employs, and shall comment on each recommendation brought to the full board for implementation per the bylaws, prior to any vote; and 

BE IT FURTHER RESOLVED that a Fiscal Team consisting of NAME, NAME and NAME, responsible for assessing the financial impact of and financial options available to the library during this time of pandemic emergency and recovery such fiscal response team shall bring recommendations to the full board for implementation per the bylaws; and

BE IT FURTHER RESOLVED that an Operations Team consisting of NAME, NAME and NAME, responsible for assessing the impact on operations and options available to the library, including but not limited to operations related to mission, plan of service, employees, and the role of the library in the community's response to the pandemic, shall bring recommendations to the full board for implementation per the bylaws; and

BE IT FURTHER RESOLVED that a Public Relations Team consisting of NAME and NAME, responsible for creating and effecting accessible, regular, and reliable communications of how the library is meeting the Goal is empowered to send out messages as needed, in the medium deemed appropriate by that Team; and

BE IT FURTHER RESOLVED that the [board or other] may add participants to these groups as authorized by the bylaws; and

BE IT FURTHER RESOLVED that no team created by this Resolution may take any action or vote that binds the board, and are purely advisory; and

BE IT FURTHER RESOLVED that in no event is any action of this Crisis Response Team Plan to interfere with the ability of the public to have access to meetings and actions of the board; and

BE IT FURTHER RESOLVED that each team shall meet no less than weekly; that the Team Leader shall ensure the full board is advised to meet as needed to implement team recommendations when they are ready; and that all notifications and conduct of such board meetings shall be consistent with the bylaws and the requirements of any current or modified operations of the Open Meetings Law.

 

That’s it.  It’s a lot, I know. But your library has probably weathered other storms: depressions, wars, local crises.  Now is your time to add to that history.  In that task, I wish you strength, health, and persistence.

Tags: COVID-19, Emergency Response

Topic: Unsealed overdue notices and FERPA - 4/3/2020
I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA viol...
Posted: Friday, April 3, 2020 Permalink

MEMBER QUESTION

I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA violation. The notices might appear face up on their desks or in their hands for other students to see. The prices of overdue materials are listed on our notices. Another issue - is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation? Thank you.

WNYLRC ATTORNEY'S RESPONSE

What a difference a month makes.  When this question came in, my kids were in school, my staff was at the office…and I am willing to bet at least one person in that group had an overdue library book.

Now, of course, we are all home trying to “flatten the curve” of a global pandemic.  If we had overdue books before, they might be overdue for a bit longer.[1]

Despite a global shift in focus since this submission, it is still a good one, and the second question may be more urgent than ever.

The FERPA fundamentals impacting this question were addressed in an “Ask the Lawyer” last year: https://www.wnylrc.org/ask-the-lawyer/raqs/80.

With that as background,[2] here are my answers:

Is sending unsealed overdue notices to students in their classrooms a FERPA violation?

Unless there is a specific waiver or request for the information, unsealed notices distributed in classrooms risks both a FERPA violation, and a violation of CPLR 4509.

Sealing the notices so the contents can’t easily be seen by people who aren’t the students or their legal guardians is a good idea.

 

Is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation?

Unless the student requests it, or a policy states that such a practice is for the proper operation of the library, a message reciting library records to a home phone answering machine risks a violation of CPLR 4509.[3]  If the student is under 18, it is not a FERPA violation—so long as the home answering machine is that of the child’s legal guardians—but as reviewed here, FERPA is not the only privacy law a school library in New York must follow.

Lost in a sea of law and regulations?  When considering the implications of FERPA and CPLR 4509 for a school library, seeking solutions that err on the side of privacy is always the safest course.   While applying the letter of the law can be frustrating, a default prioritization of privacy will almost always carry the day.[4]

Thanks for a thoughtful question.  At times of de-stabilization and change, focusing on the principles that guide us—like a commitment to providing access to information along with assured privacy—can bring calm.



[1] Many thanks to the Buffalo and Erie County Public Library for automatically renewing our books!

[2] Intricate, complex, and possibly unsatisfying background!

[3] I like this 2009 guidance from the New York Committee on Open Government on the nuances of CPLR 4509: https://docs.dos.ny.gov/coog/ftext/f17671.html

[4] If health and safety are in seeming conflict with privacy, that is a good time to do a quick check-in with a lawyer.

Tags: COVID-19, Emergency Response, FERPA, Privacy

Topic: Online Library Programming (Any Type of Program) - 4/1/2020
Our library is arranging more online programming in response to COVID-19 closures and reductions.&...
Posted: Wednesday, April 1, 2020 Permalink

MEMBER QUESTION

Our library is arranging more online programming in response to COVID-19 closures and reductions.  What should we be thinking about in making these arrangements?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming, but can pay others to offer library programming for free, so as the member says, this online program should be open “to anyone.”[1]

The instructor can still be paid, but the payment should come from the library, while the on-line attendees tune into this library program for free. 

The trick in this is to avoid “fiscal hybridization,” (with the library hosting and promoting the event, and the instructor getting some payment from some attendees).

 

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

ONLINE INSTRUCTION AGREEMENT

 

The [LIBRARY] (“Library”)and [NAME] (“Instructor”), with an address of [ADDRESS], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Instructor will offer classes in ____________ (“__________ Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The ___________ Classes will be a target audience of those who can benefit from online social gatherings to participate in ___________________. 

[in case of activity involving a professional license] Instructor’s professional license was granted by [LICENSING AUTHORITY] and is current; if the license expires or is revoked during the term of this agreement, Instructor will notify Library immediately.

[in case of instruction involving physical activity] To promote safe participation, at the start and end of every class, the screen will read, or the Instructor will say:

[INSERT Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

[ACTIVITY] is intended as a gentle but serious exercise.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please stay safe during this time of social distancing and enjoy our class.]

___________ Classes will be promoted as a free program of the library and Instructor shall not charge individual attendees for these sessions.

Library will pay Instructor _____ per session. 

[OR]

Instructor has agreed to provide this programming on a volunteer basis.

Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Instructor and Library shall be used during recorded or live-streamed __________ Classes.

Instructor agrees that Library may use their name, likeness, and image when promoting ____________ Classes. Library agrees that Instructor may use its name, likeness, and image when promoting _____________ Classes.

All sessions of __________ will be recorded by [INSERT] and the recording will be jointly owned by Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in ________ Classes.

Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                                        [NAME]

 

Signed for Instructor on _________:_______________________

                                                                        [NAME]

                                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to assess if the promotion, the session, and the recordings comply with the Agreement, and to make enhancements based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

I wish you many valuable and rewarding online programs.



[1] I also would not have a concern with it being restricted to card-holders within a system, or card-holders registering in advance to participate for free.

[2] The instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: Live streaming a chair yoga program - 3/30/2020
Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in...
Posted: Monday, March 30, 2020 Permalink

MEMBER QUESTION

Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in person and would like to make it available during our COVID 19 closure. The instructor can live stream herself with payment and we'd like to open it up to anyone. Do we need waivers or disclaimer language on our website?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online chair yoga class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming but can pay those who offer library programming for free, so as the member says, this online chair yoga program should be open “to anyone.”[1]

In this instance, it sounds like perhaps the instructor has (perhaps) been paying for space in the library, while offering on-site or online classes for a fee.  In the new arrangement proposed by the member, the classes become a free library program.  This means the instructor can still be paid, but the payment should come from the library, while the on-line attendees tune in for free. 

The trick in this is to avoid any “fiscal hybridization;” in no event should the library host and promote the event, while the instructor gets some payment directly from attendees.

                                                               

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

CHAIR YOGA AGREEMENT

The [LIBRARY] (“Library”) and [NAME] (“Yoga Instructor”), a yoga instructor certified by [CERTIFYING BODY], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Yoga Instructor will offer classes in chair yoga (“Chair Yoga Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The Chair Yoga Classes will be a target audience of those who can benefit from online social gatherings to participate in routine chair yoga. 

To promote safe participation, at the start and end of every class, the screen will read, or the Yoga Instructor will say:

[INSERT Yoga Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

Chair Yoga is intended as a gentle but serious exercise for the mind and body.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please also know that Yoga, in general, can connect you to feelings that you may wish to address with your mental health provider.  Please stay safe during this time of social distancing and enjoy our class.]

Chair Yoga Classes will be promoted as a free program of the library and Yoga Instructor shall not charge individual attendees for these sessions.

Library will pay Yoga Instructor _____ per session. 

[OR] Yoga Instructor has agreed to provide this programming on a volunteer basis.

Yoga Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Yoga Instructor and Library shall be used during recorded or live-streamed Chair Yoga Classes.

Yoga Instructor agrees that Library may use their name, likeness, and image when promoting Chair Yoga Classes. Library agrees that Yoga Instructor may use its name, likeness, and image when promoting Chair Yoga Classes.

All sessions of Chair Yoga will be recorded by [INSERT] and the recording will be jointly owned by Yoga Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Yoga Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in Chair Yoga Classes.

Yoga Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                            [NAME]

Signed for Yoga Instructor on _________:_______________________

                                                                                [NAME]

                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to the promotion, the session, the recordings to comply with the Agreement, and top make enhancement based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

While there is very little risk of liability for personal injury during livestreamed chair yoga (compared to say, in-person “Acroyoga”…you should see the case law on that![4]), “chair yoga” is targeted to a population with some physical limitations,[5] so attention to these details is a good idea. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

And finally, the most important detail for busy library professionals scrambling to serve their communities right now…

 

6. Remember to breathe

…it helps with stress.

Best wishes for a good program, and happy utkatasana.[6]



[1] I also would not have a concern with it being restricted to cardholders within a system, or cardholders registering in advance to participate for free.

[2] The yoga instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

[4] Here’s a quote from a case, (Malouf v Equinox Holdings, Inc., 38 Misc 3d 1223 [Sup Ct, NY County 2012]): “The exercise during which she was allegedly injured called for her male partner to lie on his back with his legs in the air. She "was told to lean over his feet and put his feet on my pelvis and lean forward and hang limp like a rag doll balancing on his feet with his feet on my pelvic bone”…The next step "was to put our hands together and bring our hands behind our heads with our elbows up in the air" (id.). Then, "the dark-haired girl came and forcefully pushed my elbows behind my head and forcefully brought them together and I screamed Ouch'" (id.). Malouf had not asked for assistance (id. at 31).” 

Ouch, indeed.

[5] Please don’t tell my mother, who does chair yoga at New Hartford Public Library, that I have characterized her activity this way.  There is absolutely no limit to her ability to chastise me over the 180 miles between her house in New Hartford and my house in Buffalo.

[6] “Chair pose.”  One of my favorites.

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: School Closures and Teachers Pay Teachers - 3/26/2020
With the recent closing of schools I and my membership have been asked a great deal about Teachers...
Posted: Thursday, March 26, 2020 Permalink

MEMBER QUESTION

With the recent closing of schools I and my membership have been asked a great deal about Teachers Pay Teachers. Is it responsible for teachers and districts to provide students with materials purchased through this service?

WNYLRC ATTORNEY'S RESPONSE

[NOTE: This answer is part of our ongoing response to institutions moving to online instruction as part of the world’s response to COVID-19.  For additional Q&A on that, search “COVID-19” in the Ask the Lawyer search utility.]

“Teachers Pay Teachers” (“TPT”) is an interesting service that allows teachers to license (sell rights to) others who need customized lesson plans and educational material.[1]

The member’s question relates to the TPT license, which governs what individuals and organizations can do with the content.

If the member’s question is asking: does the TPT license allow us to print and distribute the materials in hard copy for packets sent out by the District?  The answer is generally: yes.

If the member’s question is asking: does the TPT license allow us to distribute the materials electronically using e-mail or a website or a Learning Management System? The answer is generally: it depends.

I spent some time on TPT’s website reviewing their “Terms of Service”[2] and I believe teachers and organizations will need to examine the license for each separate purchase to confirm that electronic distribution is allowed.

Why? TPT’s “Terms of Service” largely allow for the creation of hard copies,[3] but their default conditions bar online distribution.  HOWEVER, TPT also allows the teachers supplying the content to loosen those default restrictions[4] (including allowing distribution on the web[5], e-mail, etc.)…so while one lesson purchased from TPT might not allow a web or e-mail distribution, another might. 

This can change not only from author to author, but content to content, so it is important to read the fine print.[6]

I would add: these are early days in the pandemic response.  As of March 26, 2020, TPT did not have any expressly Covid-19 policies on its website.  Nevertheless, like other online and tech providers, they may realize their hour has come, and take action. 

What will that action be?  I can’t say; a crisis brings out the best and the worst in businesses.  Some businesses will try and simply profit from the current situation; others will dig deep, conclude we are all in this together….and try to find at least middle ground. 

Looking at their Terms, Teachers Pay Teachers has made commitments to individual content providers it cannot easily change on a dime.  But remember, TPT empowers its individual content providers to set their own terms—so long as those terms are more liberal that the TPT baseline.  So keep your eyes on those product-specific, unique terms of use.  I imagine many teachers will feel compassion for the teachers and students impacts by this public health emergency, and liberalize their restrictions.

Thank you for this important question.

USING LICENSED CONTENT TIP: If you or your institution conclude that TPT or another license does give you permission for electronic distribution, it is a good idea to take a screen shot of that license and save it (just e-mail it to yourself in a place where you know you’ll have it for 3 years after you’re done use the content).  Online content providers can change the terms they post, without warning—and you want to be able to show that on the day you made the call to share the content electronically, the licensor allowed you to do so.

 



[1] Because some educational institutions own the rights to teacher-generated materials, and some do not, the Teachers Pay Teachers model is a fascinating study in copyright issues—but a global pandemic is not the time to muse over that.

[3] The Terms of Service allow you to: “Print and make copies of downloadable Resources as necessary for Personal Use. Copies may be made and provided to your students, classroom aides, and substitute teachers as necessary. Copies may also be made for students’ parents, classroom observers, supervisors, or school administrators for review purposes only. Hard goods and video resources may not be copied, shared, or otherwise reproduced.” [emphasis added]

[4] But not further tighten them.  Like I said, a really interesting model.

[5] For instance, one license I looked at, for a chemistry class, said: “These resources may not be uploaded to the internet in any form (including classroom websites, personal web sites, Weebly sites, network sites) unless the site is password protected and can only be accessed by the students of the licensed teacher.”  In other words: yes, you can distribute them electronically, if you use a restricted system!

[6] The diversity of author-specific permissions I saw on TPT was really interesting. Some folks just want credit.  Others want you to not send the content, but drive people to their own personal listings (so their analytics show the hits).  I bet some, in the coming days, will even change their permissions to respond to the pandemic with compassion.

Tags: COVID-19, Emergency Response, Licensing, School Libraries, Teachers Pay Teachers

Topic: Audiobooks and Copyright Laws in a Pandemic - 3/24/2020
A teacher from our school needs audiobook access to four different books for about 10 students per...
Posted: Tuesday, March 24, 2020 Permalink

MEMBER QUESTION

A teacher from our school needs audiobook access to four different books for about 10 students per book, particularly if our absence from school is extended. She would like to provide the links to students where such audiobooks have been uploaded and posted by others on YouTube. The audiobooks are still under copyright. Previously, I had been told that if a teacher merely posts links that the teacher him/herself is not liable for copyright infringement, but another librarian recently stated that there is some new case law on the issue and that even posting the links constitutes a violation. Any guidance you could provide would be appreciated. Thank you.

WNYLRC ATTORNEY'S RESPONSE

For the record, as I write this response, the following message runs across the top of the U.S. Copyright Office’s web site:

Operations Updates During the COVID-19 Pandemic

Out of an abundance of caution, all Library of Congress buildings, which includes the U.S. Copyright Office, will be closed to the public until Wednesday, April 1, 2020, at 8:30 a.m. to reduce the risk of transmitting COVID-19 coronavirus. If you are a user of U.S. Copyright Office services, submit your applications online, browse FAQs, and submit emails with questions through copyright.gov. You may also reach the Copyright Office by phone at (202) 707-3000.

Despite that announcement, no deadline, fee, or change in copyright law or regulation has been announced.[1]  That said, even the Copyright Office is switching things up as we respond to a global pandemic, and I have received many questions asking if the normal copyright laws still apply (they do).

This question, too, is about pandemic response; the member’s colleague is working to provide content for students whose education is making a quick, unplanned transition to distance learning.  That calls for flexibility, ingenuity—and appropriate online content.

The member’s institution is not alone in this need for new resources.  As I write this, my staff is working from home, and my kids (ages five and fifteen) are handling packets from school and electronic transmissions of homework.  Everyone I know now wishes they had bought stock in Zoom.  We are all seeing how vital solid online content can be.

The member wants to know if simply providing links to content that might not be posted with the permission of the copyright holder will expose their school to liability.

As of this special moment in time,[2] the clearest[3] case law on linking and academic texts found in an array of cases pen-culminating[4] in Pearson Education, Inc. v. Ishayev, a 2014[5] ruling from the one of the federal courts located in New York City (the “SDNY,” if you want to sound cool about it).

In the “Pearson” line of opinions, academic publisher Pearson Education accused two Brooklyn residents of (among other things) providing a hyperlink to a file-sharing website where a person could (allegedly) obtain copies of the Plaintiff’s materials.[6]  Pearson’s law firm even had one of their legal staff pay for the links from the defendant! (This is the kind of sneaky thing that makes people not like lawyers.)

As pointed out in the line of Pearson rulings, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement; it’s viewed as “the digital equivalent of giving a recipient driving directions to another website on the Internet.”  But that doesn’t mean that sending a link to infringing content is always okay.

As put by SDNY Judge Paul Englemeyer’s March 24, 2014 ruling on the case:

The publishers assert that Ishayev is liable for contributory infringement because he knowingly sold access to hyperlinks, which allowed other individuals to download eight of the publishers' copyright protected works from a website. If proven with competent evidence, such conduct would lead to liability for contributory copyright infringement—sending hyperlinks that permit others to download protected materials would plainly amount to conduct that encourages or assists in copyright infringement. [emphasis added]

Unfortunately, as can be seen in the Pearson opinion, deciding possible liability in matters like this doesn’t come down to a simple question of “links, or no links?”

What does it come down to?  The sender’s awareness of infringing copies, and their state of mind and intentions when they sent the links.[7]  In other words: if you know it’s wrong, don’t do it.

That’s the cold letter of the law, and it’s not very helpful or comforting, I know.  I give you something that might be a better guidestart on this one: professionalism and respect.

We are living in a very odd Spring Semester, here in 2020.  As the State of New York issues Executive Order after Executive Order, I am struggling to find solid guidance for clients.  People need to know what they can do (and not do).

While not quite on par with trying to education students, I can relate: we need content to get the job done, and the content we are finding at this precise moment might not be the most reliable.  It’s scary and inconvenient and hard.

I think, more than ever, that means it is time for us to do what we know is right.  If we know an audiobook is available from an unauthorized source, don’t direct innocent kids to go download it from a known infringing source.  It’s just not the right thing to do (and some day, those students might be copyright holders themselves, deserving of the same respect).

And finally, even if you’re willing to take the risk for your institution (we’ll take our chances, it’s a pandemic!), think of it this way: publishers and content owners track infringements by IP address, so the person who might get in trouble might not be the school, but rather the student.[8]

So, did the case law on linking “change?”  Not quite.  But it has evolved.  And who knows, maybe as a result of the current crisis, it will evolve some more.  But for now, knowingly linking to known unauthorized content brings risk.

Thank you for a great question.  I wish you health, energy, and ingenuity in this time of national emergency.



[1] Registration fees went UP this month, but that’s another story!

[2] March 22, 2020, and what an odd day it has been. 

[3] In my opinion.

[4] Welcome to my new word, “penculminating,” which means, the next-to-last thing before the end result.

[5] There are actually quite a few judicial opions on “Pearson Education.”  Make sure you look at the final rulings from 2014.

[6] This is a very bare-bones summary.  For the full story, check out the opinion here: https://scholar.google.com/scholar_case?case=2045770819331774838&hl=en&as_sdt=6&as_vis=1&oi=scholarr. (Note my intrepid linking without fear of liability!).

[7] I am not even going to attempt to go down the fair use road on this one!  But in different circumstances (not using the materials simply to teach from, for instance, or using tactical excerpts) such a claim could be made.

[8] Okay, let’s get real: it would be the parent whose name the IP address resolves to.  But you get my point.

 

Tags: Copyright, COVID-19, Emergency Response

Topic: COVID-19 Diagnosed Case Where Person Visited the Library - 3/19/2020
We are seeking guidance as a result of the following: We have been informed (by the Health Depa...
Posted: Thursday, March 19, 2020 Permalink

MEMBER QUESTION

We are seeking guidance as a result of the following:

We have been informed (by the Health Department and via news media) an individual who now has been confirmed to have COVID-19 attended a program at one of our libraries. I have been asked the following questions:

1. To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?
If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees? What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others? If you suggest a courtesy call, can you please provide suggested language?

2. CPLR 4509 speaks to the confidentiality of library records. We have always employed that this further applies to the identification of anyone using the library, those participating in programs, etc. -- meaning that NO information can be provided to anyone without a proper subpoena. Given that this is a situation related to the health and well-being of our community should (they have not, but this is a question that has been asked) the Health Department request the names of program participants does CPLR apply? If so, can you recommend a response to such a question.

Thank you for your assistance.

WNYLRC ATTORNEY'S RESPONSE

To address this very serious array of questions, we’ll take them one at a time.

To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?

The library is not obligated to notify individual members of the public regarding possible exposure; the county health department is obligated to notify the New York State Department of Health, and will coordinate the necessary level of response.[1]

If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees?

In a time of pandemic, information is power.  If the library has the capacity to notify attendees in a way that connects them to meaningful next steps, AND the County Health Department agrees that such notification will be helpful, then: yes, that would be a good thing to do.

However, because the slightest bit of mis-information in this step could potentially cause harm, such a courtesy should only be done in collaboration with the County Health Department.

What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others?

An effort to empower people, through information, to take care of themselves and minimize the spread of disease will not expose the library to liability in the event only known attendees can be alerted.  As stressed above, the greater risk would be mis-informing the public, which is why coordination with the county health department is key.

If you suggest a courtesy call, can you please provide suggested language?

For reasons of confidentiality and accessibility, the notice should not be a verbal phone call, but rather (and only if confirmed as helpful by the County Health Department), a written notice sent to the library’s user’s email address.

Suggested text for your library to review with the health department is:

Dear Library Member:

As you know, the [INSERT] [County Department of Health] is monitoring the development of COVID-19 in our county.

As you can see at the listing [here], the Department has determined that on DATE, a person with COVID-19 attended the [INSERT PROGRAM NAME] program at our library, which ran from TIME to TIME on DATE.

Because the [NAME] Library values every member, and because we believe knowledge is power, we are working with the county to notify individuals who we know were present at the event.  As advised by the County’s guidance [here], encourage you to monitor yourself daily for symptoms of COVID-19.

Further information on what to do in the event of a health concern is on the Health Department’s website at [link].

Your library information is confidential and your participation in the [NAME] event will not be released unless upon your request.

Given that this is a situation related to the health and well-being of our community…[if] the Health Department request the names of program participants does CPLR [4509] apply? If so, can you recommend a response to such a question.

Yes, the confidentiality requirement of CPLR 4509 absolutely still applies.  Here is the language of that law:

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.

Because CPLR 4509 is so clear in its protection of patron information, I am not comfortable concluding that disclosure to a County Health Department is allowed for the “proper operation” of the library, or even in the case of a declared emergency.  Even during times of trouble, we need to follow the law.

However, if the library has the capacity to do so, upon request of the Health Department, the library can write to the impacted patron, and see if the patron will request the disclosure.

Sample outreach to see if the patron wants their information released is:

As a result of a person who visited the [NAME] library testing positive for COVID-19, the county health department has the name and contact information of other patrons who visited during the [EVENT].

By law, your library information is confidential.  Therefore, the [NAME] Library will only disclose your information if you request that we do so. 

Please let us know if you would like us to release your name, address, and phone number on file with the library to the [COUNTY] County Health Department.

You may also directly call the County Health Department about this at [NUMBER]; if you do, tell this it is regarding the COVID-19 case as the [NAME] Library.

In the alternative, the County Health Department may obtain the information via a subpoena or court order.

Those are my answers to the member’s questions.  Here are some additional thoughts:

Legal compliance and ethics are strong supports during tough times. Thank you to the member for thinking this situation through so thoroughly.



[1] 10 NYCRR 2.16v

Tags: COVID-19, CPLR 4509, Emergency Response, Library Programming and Events

Topic: Executive Order 202 and NY Open Meetings Law - 3/18/2020
Can you please explain the clause below found in Governor Cuomo's Executive Order dated 3/13/2...
Posted: Wednesday, March 18, 2020 Permalink

MEMBER QUESTION

Can you please explain the clause below found in Governor Cuomo's Executive Order dated 3/13/2020. It reads:

Suspension of law allowing the attendance of meetings telephonically or other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

It is understood the Order allows a public body may hold and take action in meetings held remotely. The question comes to announcing the meeting and announcing the location of the remote conference call or similar device. Is notification required? And if so, to what extent? Location of participant?

A second question is regarding whether or not a location must be open to the public to attend OR if it is required the public also be able to access the meeting via telephone/telecommunication.

Executive order can be found here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202_1.pdf
 

WNYLRC ATTORNEY'S RESPONSE

I have a phrase I use in my office to remind my team (and me) to be diligent, but always play it cool: “Quick work is [not such very good[1]] work.”

To get ahead of the Covid-19 Pandemic, our government is acting QUICKLY.  The closings, the attention to a million health-related and logistical details—our leaders are having to handle an immense amount of work, in a very small amount of time.

When working quickly, one of the first things to go by the wayside is word-smithing. As can be seen from the member’s questions, that is what happened here.  The Order is helpful, but its phrasing probably could have been a bit more clear.[2]  UPDATE: Further, this March 13th Order may be confused for an earlier Order on March 7, which was the focus of a notice by the NY Committee on Open Government, that went out to many people, and has now been superseded by the Order referenced in the members question.[3]


So, unpacking the order (and explaining a few things it is clear the asking member already understands, but I am providing for helpful context), what does it mean for libraries?

Libraries are required by the New York Education Law (which creates them) to follow the Open Meetings Law (a/k/a “Article 7 of the Public Officers Law”).  This Order relaxes some of the laws requirements to suit our state’s pandemic response.

Typically, to comply with the Open Meetings Law, a library must: 1) provide notice of a meeting and announce the use of any teleconferencing in advance; 2) identify the location(s) for the meeting; and 3) state the public’s right to attend the meeting in person.   If the meeting will be live-streamed over the internet, the announcement must include the web address.  And finally, whenever possible, the library must post the notice of the meeting “conspicuously” on its website. [4]  (It has been firmly and repeatedly established that no voting can take place via teleconference, but videoconferencing is allowed).


The Open Meetings Law was passed because, as the New York Legislature puts it:

It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal[5] will prosper and enable the governmental process to operate for the benefit of those who created it.[6]

So what is different now?  We’re trying to maintain our democracy, but also keep it from getting sick.  With that goal in mind, lets parse the Order, and answer the member’s questions.

1. The Order says: “…without permitting in public in-person access to meetings…”

This means that for the duration of the Order, the public does not have to be able to physically attend your library’s board meetings.  Basically, it empowers your library to cut down the size of those physically assembling.  This is consistent with other recent Executive Orders regarding eliminating large gatherings.

 

2. The Order says: “…authorizing such meetings to be held remotely by conference call or similar service…”

This means that for the duration of the Order, contrary to the usual requirements, your board can meet view conference call (or “similar” service).

 

3.  The Order says: “…provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

This means[7] that in order to take advantage of the relaxed requirements I set out in “1” and “2” above, the public has to be able to see OR hear the meetings, BUT ONLY if your library arranges for them to be recorded and (later!) transcribed.

 

These are significant adjustments to the requirements of the law.  But with regard to notice, which is at the heart of the member’s question, the Order has waived none of law’s requirements. 

With that in mind, to the greatest extent possible, sending notice to the media as usual, and posting notice of the meeting in a physical, non-virtual place viewable to the public is still required. While disclosing the exact location of all meeting participants may not be possible (since they will be on the phone), the notice should strive to include as much information as possible that is most useful to the public, including the location of any physical participants.  And the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.

It might be also be helpful, when crafting your notice, to include acknowledgement that this meeting and notice will be a little bit different:

In keeping with Executive Order 202.1 (regarding emergency adjustments to the Open Meetings Law in response to the Covid-19 pandemic), the public is not permitted in-person access to this meeting, and the meeting shall be held remotely via [METHOD].  As required by the Governor’s Order, the public will have the ability to [VIEW OR LISTEN TO] such proceeding at [METHOD], and the meeting shall be recorded,  transcribed, and made available on the Library’s web site before [DATE].

Since current federal government guidance is that gatherings of more than ten people are not recommended at this time, it makes sense to not provide or allow access to a physical location in which to gather to listen to or view the meeting—at least for now.  But business must get done.

Good luck with your meetings; your board members have a lot to think about.



[1] I actually use shorter, monosyllabic word, but Ask the Lawyer is rated “G.”

[2] I am assuming that “legal aid in the Governor’s Office” is not a relaxing job right now (if it ever is).

[3] Thanks for the heads-up on the COOG’s 3/9/20 advisory memo, Grace Riario at Ramapo Catskills Library System (which, to emphasize, has been superseded by the 3/13/20 Executive Order).  With so much happening so fast, it is good to be able to add this layer of clarification.

[4] For a more thorough explanation, visit https://www.dos.ny.gov/coog/openmeetinglawfaq.html

[5] Not a typo, but a cool old word for the general welfare.

[6] Public Officers Law, Article 7, §100.

[7] For anyone who wants to get together (virtually!) and discuss the significance of potentially missing commas in this part, please send comments to adams@losapllc.com.

 

Tags: COVID-19, Emergency Response, Executive Order, Open Meetings Law

Topic: Providing website disclaimers - 3/17/2020
With the Covid-19 pandemic, we are creating a Google Site where we are listing websites. I know I ...
Posted: Tuesday, March 17, 2020 Permalink

MEMBER QUESTION

With the Covid-19 pandemic, we are creating a Google Site where we are listing websites. I know I have seen websites that post a disclaimer something to the effect that we are anticipating that the links are recommended, but that we cannot guarantee the veracity of the information. I am looking for preferred wording from a legal standpoint.

WNYLRC ATTORNEY'S RESPONSE

During a pandemic, reliable and verifiable information is critical.

Even as libraries are faced with challenges to their operations, they are working hard to ensure people have just that: solid information. 

This is a vital service, since what is needed is not only virus-related, but the details of how we hold our communities together: information on social services, operations of courts and other critical government functions, and the distribution of resources to those in need.

In all this, “bad” (unreliable) information can travel with the “good” (reliable) information. 

A good disclaimer alerts the reader to this in a resource-appropriate way.  Because of that, there is no “one size fits all” disclaimer.  But there is a formula for generating one.

An effective disclaimer alerts the reader to: 1) the reliability of the sources on a list; 2) the purpose of the list, and 3) the ability of the compiler to assure readers as to content’s continued quality.  For the broadest lists requiring the strongest disclaimers, re-directing the reader back to the best sources is a good practice to consider.

With that formula in mind, here are 4 sample disclaimers, based on the qualities of a list of links:

1.  Reliable/verifiable source, very specific purpose, specific date:

This compilation of links is limited to government sites’ updates on pandemic response as of [DATE]. 

 

2.  Reliable/verifiable source, broader purpose, rolling updates

This compilation of links is limited to CDC and local Department of Health updates on pandemic response and public health, and will be added to as resources grow. This situation is evolving rapidly; please alert us to any broken links. 

 

3.  Less verifiable/reliable sources, specific purpose, specific date

This list was assembled on DATE and gathers a diversity of information and sources regarding Covid-19 pandemic response.  [NAME] library cannot verify the links will remain active and cannot verify the veracity of content.  For the most reliable information regarding global and local pandemic response, visit the Center for Disease Control and [your local Department of Health].

 

4.  Broadest list, broadest disclaimer

This list of links gathers a diversity of information and sources regarding Covid-19 pandemic response and related issues, including resources for coping during a time of social distancing.  [NAME] library cannot verify the links will remain active and cannot verify the veracity of content.  For the most reliable information regarding global and local pandemic response, visit the Center for Disease Control and [your local Department of Health]. 

 

I hope this approach is helpful. Thank you for a good question and thank you for serving the public at this time of need.

Tags: COVID-19, Emergency Response, Disclaimers

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

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.