COVID-19

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.

 

 

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[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!

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.

 

 

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[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.

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 [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.].  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.

 

 

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[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.

[3] In the answers from March 18, 2020, November 16, 2020, and December 14, 2020.

[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.

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. 

 

 

 

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[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. "

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: RAQ #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.

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 confidential.  When 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.

***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.

[3] https://www.governor.ny.gov/news/no-20234-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[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.

Thank you for this careful and thoughtful question.  As we rush to migrate education to online, the small details can get overlooked.  As the member writes, information that used to be safeguarded in physical files or with separate passwords is increasingly accessible via a "one-stop shop."

Depending on the type of information involved, any number of ethical, privacy, and legal concerns can be impacted.

In this question, the member focuses on two types of information: library records, and FERPA-protected "education records."

For library records, there is an overlap of legal concerns—an overlap that was thoroughly discussed in the 5/6/19 answer the member cites.  In that reply, we established that depending on how a school/school library is set up, parent/guardian access to this information might be allowed--but it’s a question that should never be left to chance (it should always be answered by a school’s FERPA and library privileges policies).

To that answer, and considering the spirit of the times, I'd simply add: any librarian out there, operating in elementary and secondary education, should be lauded when they raise privacy concerns.  Librarians should work with IT departments and procurement professionals to ensure data management and automation enable the separately governed access to a student's library records.  Even when access is legally allowed by a system, it is still good to emphasize the privacy of library records.

Here are several examples of how this can be done:

• Including privacy considerations in “Requests for Proposals” (RFP’s) and quotes for automation and other data management software that will hold library or student records;
• Training both library and IT staff to keep the division of different types of records with different access parameters at top of mind (“Remember, library records aren’t just protected by FERPA and ED 2-d”);
• Ensuring that release and parental permission forms distinguish between and properly govern access to different types of records;
• When making quick changes based on pandemic exigencies,[1] ensuring at least one person is tasked with assessing if the implementation conforms with applicable institutional ethics, policies, and privacy regulations.
• Using deliberate awareness tools, such as a pop-up window that appears prior to enabling access to library files, saying "Student library records are confidential under state law.  Only properly authorized parties should view these records," is a good way to distinguish access to library information from other education records.[2]

For any educator reading this and thinking “Uh-oh,” if the horse is out of the barn, it is never too late to adopt some retroactive corrections.  When parental access is as plenary as the member describes, if there is a confirmed issue (such as access to one student’s enrollment records leading to access to all students’ enrollment records[3]) working with IT to address the specific utility hosting that information, and how it can be further locked down, is the only solution.

There will be times when addressing an issue like the ones raised by the member is simply not within the authority of the person concerned.  A concerned librarian or educator might even find themselves rebuffed when they try to ring the alarm! When that happens, it is time to kick it upstairs.  Each school should have a FERPA officer, and at least one senior administrator whose role is associated with enforcing a code of ethics or policies on privacy.  Concerns of this type are all appropriate to direct to such an administrator.

No one engineers a FERPA or privacy violation on purpose, but unwitting violations can happen when the learning environment has to change fast.  Being alert and ready to identify and correct concerns as soon as they emerge is critical.  Thanks for a solid question that shows how it's done.

 

 

 

---

[1] “Pandemic Exigencies” would be a good name for a heavy metal band.

[2] As discussed in that 5/6/19 answer, who "properly authorized parties" are can vary from school to school.

[3] This is indeed a possible violation.  FERPA §99.12 states "(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student."

This "Ask the Lawyer" answer is being composed on December 28...that cold, snowy time between Christmas and New Year's, when the courts (even during non-COVID times) are slow, staff are on holiday, and lawyers sit around thinking about catching up on filing, or even (gasp) leaving the office early to shovel, or take their kids sledding.

This quiet, contemplative "winter lull" is the perfect time to consider questions about investments held by not-for-profits.  Why it that?  Because the answer must—no matter how carefully edited, designed, and written for clarity—be extensive, and therefore long.

But that's okay, because the deep mid-winter is the time for stories.  So, grab a mug of cocoa, snuggle into a blanket, and get ready to read:

Prudence: Tale of Library Investments

Chapter 1: Extra Money

It was a cold day, but then again, in New York, most winter days are.  The Library checked its old boiler system and found that, despite certain pangs, it was going to keep the heat running that day.  This was good, since even with the staff offering only services curbside, the Library's inhabitants would be happier if they didn't have to wear fingerless gloves while using the computers.

Assured that its occupants would be warm, the Library thought about an exciting new development: money.  Based on what it heard during the Zoom board meeting last night, due to some donations, the Library had some to spare.

This notion of "spare" money was new to the Library.  From its founding in 1885 through to the present, it couldn't recall having too much extra.  And even when the bank account got ahead, the Library found a way to spend it down: a new wing, a ramp, and one memorable year, a completely new roof.

The Library sat on its strong, stone foundation and recalled the discussion of the board.  "We can start an endowment!" said one.  "No, we can just set it aside," said another.  "We must invest it," said a third.  "Can we do that?" asked another. And finally: "We must research what to do," said the board chair, sounding prudent and wise and thoughtful. 

And everyone had nodded or put their thumb up in agreement, as people in Zoom meetings are wont to do, before putting up their thumbs again to adjourn.

Chapter 2: Research

The Library was still recalling the ins-and-outs of the meeting (no new carpet this year; but a slight raise for the Director, who had been "a rock," according to the chair of the board), when it recalled what the board had committed to do about the "spare" money: research. 

Hey, the Library thought, I can do that.  And, firing up the internet on a computer in the corner,[1] it accessed Lexis-Nexis to see what it could do.

When the Senior Clerk showed up for work the next day, she found this, sitting on the printer:

To the Board:

I am so pleased the library has acquired some spare money at a time when I do not need repairs, new shelving, or capital improvements!

While you might want to think about having the boiler replaced, I have taken the liberty to research some options for investing this windfall.

First, it appears that a not-for-profit corporation like this library should have an "investment committee."  Information on that is here: https://www.charitiesnys.com/pdfs/sympguidance.pdf

Second, it seems that if the library is to have any endowment or investments, it should have a policy about the "prudent" management of them.  The New York Attorney General's guidance on that is found here: https://www.charitiesnys.com/pdfs/mifa-funds.pdf

Third, I can confirm that while an association library like me doesn't have to follow the "rules" (which are actually laws) regarding investments that public libraries do, those rules are regarded as a nice model to follow.  The Comptroller's guidance on those rules is here: https://www.osc.state.ny.us/files/local-government/publications/pdf/investingpublicfunds.pdf

Fourth, since the Comptroller's restrictions on certain investments don't apply to us, if we are "prudent," adopt a solid investment policy, and follow it, we can invest in local initiatives, publicly held companies, and even "socially responsible investing."  Some good commentary on that is here: http://www.nysl.nysed.gov/libdev/trustees/handbook/chapter11.htm

Fifth, if a contemplated investment is local, we must take particular care to document that all decisions regarding it comply with our "Conflict of Interest" policy (you know how things are in a small town).

Finally, we have to consider how this looks on our annual fiscal reporting, since we are a recognized charity under the Internal Revenue Code (what we refer to as our "501(c)(3)" status), and must file a form "990" disclosing how much we have in our investments.  What that boils down to is: if people look us up at https://www.irs.gov/charities-non-profits/tax-exempt-organization-search, will we look like responsible investors?

And that's it.  I was happy to help with the research.  In return, it would be great if you would consider creating an ad hoc committee to investigate some preventative maintenance on my boiler.  Oh, and when you re-point my masonry, be sure you use a contractor who will select the right mortar.[2]

Thanks and good wishes,

Your Library (Building)

Chapter 3: Finding a New Senior Clerk

They've dealt with Safety Plans.  They've risen to the occasion with curbside.  They've found a way to do readings and workshops and community events online.  But they might draw the line at working in a sentient (some would say haunted) building that does its own not-for-profit management research.

THE END

Thank you for indulging my taste for a little end-of-2020 fiction!  Hopefully, the Library's research guides you to the right places for legal compliance when making investment decisions. 

My final guidance on this?  To be safe,[3] turn off the computers at night.  Then, to move forward with creating an endowment[4] or making an investment like the one described in the question:

• amend your library's bylaws to create an investment committee;
• have the investment committee use the linked guidance (along with a lawyer) to develop an investment policy;
• confirm the details of the policy and method of accounting for investment revenue with your library's accountant;
• if your library places a high priority on “socially responsible investment,”[5] make sure those parameters are in the policy;
• apply the standards in the policy to make a decision;
• when an investment is local, pay close attention to the parameters for investing and your library's policy for managing conflicts of interest; and
• Record every step in the board minutes.

And that is how your association library can invest in a "bank, or a stock, share of a public company."

I wish you many happy returns on your investments! 

 

---

[1] Yes, in addition to being a boring, prudent and thorough discussion of how an association library must manage funds dedicated to endowment and/or investment, this IS a story of a sentient library encased within a historic sandstone structure.  2020 has been a long year!  It's time to be fanciful!

[2] This is just me channeling my worst fears about old buildings into the story; if you undertake to "re-point" (fix the mortar between stones or bricks) make sure your contractor picks the right mortar.  If they use something like Portland Cement, the mortar won't move with the stones/bricks, and it can cause horrific damage. 

[3] And to be green.

[4] "Endowment fund" is often used as a catch-all term for a stockpile of money held by a charity, but in New York’s Not-for-Profit Corporation Law, it is defined as “an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis..." [emphasis added].  Meaning: the use is limited to the income generated by the core amount (over-reliance on endowment income, by the way, is why 2008 was such a nightmare for many well-endowed not-for-profits, when investments tanked and interest was next to nothing).

[5] For example: seeking out funds that limit use of fossil fuels, and avoiding investment in companies with a record of abusive labor practices.  For libraries, taking care the fund does not support regimes that suppress academic freedom/media, or otherwise limit access to information, might also be a key criterion.

My favorite DJ-related story is about how "scratching" a record,[1] as both a musical instrument and an act of composition, evolved in the hip-hop scene of the late 1970's and early 80's.[2]  It is a story of technological innovation, of community culture, and (as all good stories are) controversy.[3]  DJ's, like all contributing figures to culture, make for compelling scholarship.  So I am not surprised to see this question about audio-visual content portraying a DJ on a library archive.

The short answer is: sure, it could be a violation; but there are five things that can keep it on the right side of the law—or at least mitigate the risk if there is an unintentional violation.

Here are those five "things":

First thing

Is the posted video part of a well-developed and organized collection or archive?

If "yes," go on.

Second thing

Does the metadata on the unique video reflect that it is part of a well-developed and organized collection?

If "yes," go on.

Third thing

Is the music part of a recording of an event, or is the music a separate track with all other ambient sound (the crowd, street noise, the DJ talking over the music) removed (or never there)?

Even if "no" go on, but have the next two really, really tight.

Fourth thing

Has your library[4] conducted and documented[5] a "fair use" analysis[6]  of its posting of this particular content, and to the best of its ability, reflected accurate ownership of the item in the metadata and item information on the archive?

If “yes,” go on.

Fifth thing

Does your library have a "notice and takedown" contact point posted on its website, so anyone who believes the content is an infringement can complain, AND has your library registered[7] for "safe harbor" under the Digital Millennium Copyright Act?[8]

If "yes," DJ on!

Why do I have to do the "5-step hustle" to answer what seems like a simple (if compound) question?  Because how and why content is used can transform "infringing use" to non-infringing "fair use."  For a component of a scholarly or historic video archive, this means being able to show that a musical recording incorporated into an audio-visual record is not merely a gratuitous use of the audio content, but rather, a critical element of a work that transcends (and doesn't simply replace) the purpose of the original. 

This is, in some ways, a tall order.  But if you follow steps "1" through "4" above, you significantly increase your likelihood of getting it right. And as for step 5: the DMCA has been in the news, recently, as a part of the national info-tech infrastructure that is due for an overhaul.  But for now, it can protect certain kinds of service providers (like search engines, directories, and other information location tools) from liability for third-party infringement, and it is an essential part of any information database's copyright compliance toolkit.

Thank you for a good question.

 

 

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[1] Which makes a sound like either "schkud-shckud-shzyaaa" or "hschhzka- hschhzka-zreek" depending on how you translate it into onomatopoeia, along with the skill and intent of the person doing the scratching.

[2] According to his tag in the Cornell University Hip-Hop Collection, scratching was invented by Grandwizzard Theodore.  However, there is some assertion that Grandmaster Flash put Theodore on the path to the scratch.  Either way, it is a good story.

[3] If you are looking for a new era to get obsessed with, early Hip-Hop is a good one.  It is replete with geniuses, scandal, and triumph—and provides insight into cultural and community factors relevant to today.

[4] This 5-step analysis assumes your library is a not-for-profit educational institution (like a public library).

[5] As in: done the analysis in writing (generally a form), and retained the form.

[6] From 17 U.S.C. Section 504(c)(2): "...The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords..."  Of course, making video "available" can be considered a transmission under certain circumstances (like streaming), so make sure your "fair use" conclusion is solid.

[7] Your institution can register for "safe harbor" in some instances (when it is more of a "provider" than a "publisher") here: https://www.copyright.gov/dmca-directory/

[8] I like the way Creative Commons does it: https://creativecommons.org/dmca/