ADA

Ugh.

Not only is the answer to this “maybe,” but I am afraid the answer is actually “maybe maybe.”  And it might even have to be “Maybe maybe maybe, maybe.”  But hang in there, because I think I can still give you some solid information in reply! (Maybe.)

Oral history projects—exhibits and collections using audio and video recordings to tell a story in participants’ own words--provide invaluable access into the culture and experience of particular people, at a particular place, during a particular time.  Using direct representation, with only the mediation of the recording, they can show emotion, capture dialect, and put a subject in control of their own story.[1]

Hosting such stories online is a great way to bring unique perspectives and individual experiences to a broad audience who might not be able to access a physical museum.  But as the member’s question points out, not everyone has equal access to audio or audio-visual online content.  So what are the precise ADA obligations pertaining to an oral history exhibit’s audio components?

As the word “maybe” implies, there is no bright-line answer.

Libraries, museums and archives collecting and curating oral histories all have different obligations under the Americans with Disabilities Act.  Some institutions will fall under the obligations governing government entities. Others will fall under the law and regulations governing places of public accommodation. Still others will have accessibility considerations arising from acceptance of federal grant money, or operation as an educational institution or health facility.

And finally, some institutions may develop an oral history exhibit along with a community partner, splitting duties regarding collection of stories, arrangement of information, construction of the on-line exhibit’s functionality and web presence, and ongoing hosting.  And any one of those split or shared duties, regarding audio, could have implications for access under the ADA.

But while there is no bright-line answer, there is some great guidance out there on this topic, and if that guidance is followed as closely as possible, it will not only reduce the risk of an ADA violation, but perhaps also enhance an oral history exhibit.

To design an oral history project that will have a high likelihood of complying with the ADA, the project developers have to be thinking about access from the start.  This means, before the project budget is fully allocated, before the contracts are awarded, before the online platform for a project is selected, or before any contributor terms are settled, access for those with a disability has to be considered up-front.

Fortunately, pre-planning and clear methodology are the hallmarks of all serious oral history projects.  This is due to the great professionalism of those who are committed to this medium, who have developed an array of ethics, legal considerations, and guidelines for such projects.

Any member considering an oral history project should check out the excellent guidance at https://www.oralhistory.org/?s=ethical+guidelines (the statement of ethics developed by the Oral History Association) as well as their institution’s own ethics policies and guidelines.  Any agreement with a collaborator or contributor should also reference the ethics/access criteria for both parties, as well as for a particular project.

For compliance with the ADA, what are those guidelines?  There are any number of them, but I’ll go with what I consider the Gold Standard: The US Department of Justice, which investigates alleged violations of the ADA, guides web developers to the World Wide Web Consortium’s (“W3W”) Web Accessibility Initiative (WAI), which sets forth clearly developed standards for web content accessibility.

What does WAI say about the issue of audio content?  A lot.  Further, what the WAI has to say is so well-developed and nuanced—addressing just about every permutation you can think of (speaker reading from script, spontaneous speech with one person, spontaneous conversation, both audio-only, and audio-visual)—that the best thing I can do is send you to their guidelines:

https://www.w3.org/WAI/WCAG21/Understanding/audio-only-and-video-only-prerecorded

As you’ll see in the “Standards,” just as the member suggests, sometimes a textual timeline might be sufficient.  Other times, a transcript of the complete audio content should be available.  And while this information can be part of the metadata, the manner in which the exhibit interacts with the user’s browser will be just as critical (for oral history exhibit developers who are actually developing the front end of an exhibit, here is what the USDOJ looks for : https://www.justice.gov/crt/web-page-accessibility-checklist1).

To use the member’s specific example, there may be times when simply a timeline of the information is sufficient.  If, however, the way the person is describing the events, or the particular language or dialect they are using is part of the value of the exhibit, the content should be fully transcribed.  The standards used to make that call should be part of the design of the project.  For contributors sending an exhibit in to larger work, the host should be the one to set the criteria. 

Now: I appreciate that not every oral history project, or every institution undertaking one, will have the budget or professional support to create W3W-informed access content.  And while transcription gets easier and faster every day, not every project will have the capacity or need to use that, either.

Some oral history projects are very small.  Some projects involve simply wanting to record different experiences of the people in a town, enjoying their Public Library, and put them on the library website.[2] For those projects, the more modest resources and needs of the Town will govern the ADA obligations (unless there are strict conditions under grant money).  But for larger projects connected to institutions that can be seen as having an obligation to provide such transcripts as part of a large oral project, particularly if public funding is involved, it is best to design the project to conform to agreed upon ethics, and W3W’s standards for Accessibility.

Again, this requires consideration at the front end of the project, and needs to be built into the budget and the procurement.  It also needs to be built into any agreements for outside contributors (which the question hints at). 

As the W3W guidelines point out, this will not only ensure the accessibility of your project, but will help people and institutions who do not speak the language of the person in the audio or audiovisual content to use your oral history project in their own research. The fact that this will also give you a better project is an incidental benefit of designing for inclusion!

Thanks for a great question.

[1] Through the magic of editing selective footage, an oral history project can also directly subvert these goals, but let’s assume anyone reading this is using their powers for good.

[2] Some would debate if this would be called an “oral history” project.  Out in the field, I have encountered many uses of that term, and some of them are very informal, or minimally funded, so I am including that as an example.

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.

[8] Here is a good resource for ADA and COVID-19: https://askjan.org/blogs/jan/2020/03/the-ada-and-managing-reasonable-accommodation-requests-from-employees-with-disabilities-in-response-to-covid-19.cfm

On the surface, this is a simple issue: if people are using their cell phone for personal use on the job, a simple policy to stop the use should solve the problem, right?

Not these days.

As technology continues to transform the workplace (and the world), “cell phones away, please,” is not as easy as it once was.  People use their cell phones to monitor health, track their steps, and get emergency calls from kids at school.  Some may even use their cell phones to save their lives, serve as a witness to illegal activity, and exercise their right to free speech. 

Many of these functions depend on the proximity of the person to the phone (or the watch that connects them to it), and because of this, cell phones are becoming extensions of the people who own them.  So a policy to keep them stowed and away, or secured in a locker, can be met with resistance. 

Here are a few examples of how this “resistance” can play out on the job:

• An employee who is the parent of a child with Type 1 Diabetes may want their cell phone on them to keep an eye on their child’s glucose level[1] while the child is at school;
• An employee who being stalked by an ex may want the phone to record evidence to seek a protective order;
• An employee trying to lose weight per a doctor’s orders may be using a supportive app and a Fitbit;
• An employee may want to use their personal camera phone (“it’s better”) to take pictures for the library’s Instagram;
• An employee may need to text their partner to confirm who is picking up the kids, making dinner, and mowing the lawn before it turns onto a meadow;
• An employee may really love to play Candy Crush Saga® when things are slow at the reference desk.

As can be seen, many of the reasons to keep a cell phone on one’s person are compelling; other uses may not be.  And many of reasons/uses overlap with other library policies.

The goal, of course, is not to bar an employee from important connections and a tool for their well-being, but to make sure the use of personal electronics does not distract from the library’s professional environment and employee productivity (even on a slow day).  To achieve that, there are two broad solutions: 1) rely on a collection of policies to address the variety of purposes for personal cell phones while at work; or 2) create a catch-all policy. 

In a work environment where consistency for staff members is critical for professionalism and productivity, I prefer a combination of both.  What does that combination look like? 

It starts with policies for:

• ADA accommodations
• FMLA
• Domestic violence victims’ accommodations
• Workplace violence prevention
• Communications/media
• Use of technology
• Confidentiality of library records and patron privacy
• Employee conduct

…which should all allow for appropriate use of personal cell phones and electronic devices.  This doesn’t mean the policy has to mention cell phones specifically—just have enough flexibility to address them.

At the same time, assuming the above-listed policies harmonize with it, creating a specific “Policy on Use of Personal Cell Phones and Electronics,” as proposed by the member, can help employees and management navigate these issues in a rapidly changing world.

Here is an example of such a policy[2]:

[INSERT LIBRARY NAME] Policy on Personal Use of Cell Phones and Electronics

The mission of the [INSERT LIBRARY NAME] depends on employees maintaining a professional, productive environment. 

To maintain that environment, use of personal cell phones and electronics should only divert employees from work duties in the case of an emergency. 

To achieve this, cell phones and personal electronics should be stored in a carrier, purse, or pocket where the screen is not visible during work time, and watches synched with other electronics should not divert employees from work except during designated breaks in designated break areas. 

Sudden personal emergency needs that require use of a cell phone or other personal electronics should follow the established procedures for use of break time and personal time.

Use of cell phones and personal electronics for ADA accommodations, FMLA arrangements, personal emergency, and personal safety needs are exempted from this policy, and should be arranged on a case by case basis with a supervisor per the relevant policy. 

As with most HR policies, this one sounds simple, but can be complex to administer.  The need to be flexible and allow some cell phone use (especially ADA use, the basis of which may be confidential), can cause seeming inconsistency in enforcement.  To address this, employees must be sensitized to the fact that some people may depend on a personal devise for an authorized (and confidential) use, while at the same time be given the clear message that keeping in touch with social media and personal contacts during work time is not allowed.

As technology puts pressure on the norms of society, it is important to draw (and re-draw) reliable and clear boundaries…especially in the workplace.  So should a workplace have a policy on personal cell phones?  Done right, and with due consideration of the law, it can help.

Thanks for a timely question.

To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me.  Can they do that, or can you help me sue?”[2]

If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process.  For the sake of argument, let’s say that for every question I pose, the answer is, “No.”

• Do you have a disability that requires you to be barefoot?
• Do you hold a sincerely held religious belief that requires you to be barefoot?
• Does this rule disproportionately impact you as a member of a protected class?
• Are you subject to some type of judicial order that requires you to be barefoot?[4]
• Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?

Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”

Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State.  So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.

This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land).  A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it.  And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy). 

The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law.  Country clubs may require a formal style of clothing, while barring cleats and spikes indoors.  Children’s camps may require kids to wear shoes (with backs!).  Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]

Why all this commentary about the law and clothing? I’ll make it clear.  Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]

It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions.  The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too.  And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.

So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes.  On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs.  That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).

Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules.  I want to stress: such factors are variable.  The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through).  But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice.  And it’s okay to insist on it.

Thanks for a great question!

It makes sense that “Ask the Lawyer” gets a lot of Americans with Disabilities Act (“ADA”) related questions.  After all, both the ADA and libraries work to reduce barriers—barriers to information, barriers to education, and barriers to services/employment.   

The issue of fragrance sensitivity and ADA compliance brings unique challenges. 

For people living with this disability, the stakes are high: itching, burning, sneezing, rash, nausea, headache, and breathing problems can all result from exposure to even small amounts of fragrance in the air.  And there is no reliable way to predict what precise product might carry the triggering chemical, scent, or compound.[1]

To drill down into the member’s question, if the sole concern the patron has raised has been about access to the bathroom, then it may be that this sole adjustment was sufficient.  However, I have found it is best to work through ADA accommodation issues from a broader perspective, by asking: within attainable, affordable and (thus) reasonable measures, are we doing all we can to reduce barriers to access?

In a bathroom, this could be limited to removing a scented air freshener, as the member has done.  However, it could be that in addition to the air freshener, particular cleaning products, ambient scent entering the bathroom via the air ducts, and other fragrances (some of them on people) are invading the space and triggering the negative impacts.  In that case, the key is to reduce all fragrances in the space (within the bounds of what is “reasonable”), perhaps by:

• changing cleaning products
• changing the HVAC system
• having a scent-free policy

--all of which could be considered an accommodation under the ADA.

Not all of these accommodations, however, are automatically “reasonable.”  Switching cleaning supplies could require a negotiation under the standing contract with a professional cleaner—or could be as easy as selecting fragrance-free products.  A small library with an annual budget of $150,000.00 would find it too expensive to re-route the HVAC at a cost of $200,000.00—but perhaps could install a small window fan, drawing in fragrance-free air, for a much lower (and thus reasonable) cost.  And the “reasonableness” a fragrance-free policy will depend on several factors, based on who it impacts.

A “fragrance-free” policy can be imposed upon employees after due consideration of overall working conditions, any union agreement, and related policies.  However, a “fragrance free” policy for the visiting public poses broader difficulties.  As just one concern: while most libraries will find it reasonable to address extreme hygiene issues that impact everyone (like visitors who may bring the pungent odor of fecal matter[2]) through a “Patron Code of Conduct” to, a facility-wide “fragrance ban” could (ironically) impose limitations on library access.

This is where design—and well-crafted library-specific policy—can help out.  Depending on the library, a climate-controlled area with separate HVAC or windows can be set aside as a “fragrance-free” area.  A sign could say “This area is designated as fragrance-free.  Please observe this restriction in consideration of fragrance-sensitive patrons.”  For libraries considering updating their facilities, although not currently required by current (2010) “Standards for Accessible Design[3],” a room with adequate heating/ventilation/ac (“HVAC”) to achieve this separation is worth considering.

As someone who is addicted to Lush’s “Dirty” body spray (spearmint and tarragon, just the thing to spritz after a stressful day of lawyering[4]), I realize it is easy to write about creating a scent-free space, and hard to navigate the human aspects of policing one.  Further, as discussed, there is no one-size-fits-all approach. The bottom line for compliance is: within the limits of what is financially, operationally, and physically feasible at your library, consideration of a fragrance-free environment should be made.  When the access under consideration is for a bathroom, access to the accommodating facility should be clearly designated, and a bar to fragrances should clearly apply to the space.

A great resource for starting this fragrance-free journey, including sample language for when considering a policy, is https://askjan.org/disabilities/Fragrance-Sensitivity.cfm.  As always, before using cookie-cutter language, it is best for a library to check its charter, bylaws, other policies, lease, and any union agreement before crafting their own, unique policy to meet the needs of their community.

I hope this answer passes your “sniff” test.

This question has two parts, so I will re-state them for clarity:

Is it legal to forward that charge on to the patron as they are the party who cancelled the service?

Answer: no.

If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

Answer: yes.

For more on both of these, see below!

This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019. 

“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.

[We’ll pause while you read “Screening Movies” and absorb the basics.]

Okay, have you got the fundamentals of ASL-related ADA compliance?  Great!  Now we’ll move to the advanced work required by these questions.

The answer to the member’s first question is “No,” because, per federal regulations[1]:

 (c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….

While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:

One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.

In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot. 

There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.

1.  Renegotiate your interpreter contract to shift away from cancellation fees

This of course requires cooperation by your ASL agency, but it is feasible. 

One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what. 

This gives both your library, and the provider, some fiscal stability as you serve the needs of your community.  It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.

2.  Renegotiate your contract to tighten the cancellation window and reduce the fee

24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!

Again, this requires cooperation by our agency, and in you location, it might be a seller’s market.[2]  But it doesn’t hurt to negotiate![3]

3.   Know your budget

As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution.  What might be “reasonable” to a large urban library might be an “undue burden” [4] for a small village library with a much smaller budget.  But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.

When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services.  It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.

For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital. 

The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required.  And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.

[1] 28 C.F.R. § 36.301 “Eligibility criteria.”

[2] A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.

[3] I don’t mean to imply that this member didn’t negotiate.  In my experience, librarians are often tough and forward-thinking hagglers.

[4] Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –

• (1) The nature and cost of the action needed under this part;
• (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
• (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
• (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
• (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

This is an important submission, because access is the mission of every library, and access is the purpose of the ADA.  When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.  

Under that principle, the answers to the member’s questions are:

• When showing a movie, always use some type of assistive technology to ensure accessibility.
• When having a large-scale event, always budget and plan for an ASL interpreter.
• To ensure people can advise the library of the need for specific accommodations, have a well-developed and publicized accessibility policy.

By planning for access, an institution can never go wrong under the ADA.

But the member wants to know: when planning for access, what does the law specifically require?

As always, what the law requires can depend on a lot of different factors.

The ADA and its enabling regulations do expressly require certain entities to use captioning technology.  For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech. 

But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters.  Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”  

In other words, while captioning is not expressly required at a library, accommodations are.

The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie.   What’s important is not the precise accommodation, but the removal of a barrier to service.  

That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access. 

How can a library easily assess all those options?   A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org.[1]  Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget. 

For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services.  To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.

Which brings us to the heart of the member’s question: what are a library’s specific obligations?  At the start of this answer, I have used the lawyer’s go-to response: “it depends.”  But what does it depend on?

Precise obligations under the ADA vary based on institution type, size and budget.  For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure.  This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.[2]

On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.

But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult[3]). 

This is why every library should have a custom-tailored[4] accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations).  While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all. 

For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event.  Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully. 

A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:

• the library is not making ADA decisions ad hoc (a recipe for a law suit);
• that its documentation shows compliance if a violation is claimed;
• that ADA accessibility is built into budgeting, staffing, training, purchasing, and event planning;
• that the institution is placing the needs of all patrons at the forefront of planning.

If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members[5], and an attorney, should be a top priority.

How can that play out?  Let’s return to the member’s scenarios. 

With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way.  The library would check the latest alternate assistive technology in the early planning stages of the event.  Consulting AskJAN, they might determine that perhaps remote CART[6] technology can help, and their planned budget line would pay for it.  If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.

If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages.   But more critically, the details of the event will reduce the risk of such a complaint,  since any person who needed accommodation had access that was both well-planned and easy to arrange. 

Thank you for these important questions.

[1] https://askjan.org/a-to-z.cfm

[2] An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm

[3] This legal language “undue burden,” causes some of the most painful moments under the ADA.  When a small, budget-challenged institution is forced to call a necessary accommodation a “burden,” no one feels good.  Sometimes the law picks the wrong work; I would have gone with “unduly disproportionate.”

[4] Although seeking inspiration from similar institutions can be a great place to start, an ADA policy is not a document to cut-and paste from another institution. 

[5] Page 62 of the 2018 “Library Trustees Handbook,” is a great resource for a library directors who need to give trustees an summary of the magnitude and importance of this issue.

[6] Communication Access Real-time Translation.