RAQs: Recently Asked Questions

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

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.