COVID-19

I had initially considered bundling this question with another submission about temporary actions or policies during COVID-19.  After all, both questions relate to policy, and a big goal of “Ask the Lawyer” is to provide legal information efficiently.

But after drafting that answer, and considering this question further, I did away with that notion.  The member has isolated an incredibly critical concern about employee/employer safety and authority.  It is a question that demands—and deserves—its own consideration.

But before we dive into the legalities, let's consider the practical implications of the member’s question.  Why would an employer want to “exclude vulnerable employees” from the work site? On the flip side, why would an employer want to set policies “requiring” a class of employee termed “non-vulnerable” to return to work?

Near as I can figure, the employer would want to do this to promote safety; a laudable goal.

However, that is not precisely the approach an employer in New York State is empowered to take.

Under both the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law (“HRL”), employers are barred from discriminating against employees on the basis of real or perceived disability. This means that a NY employer who knows—or suspects—an employee might be particularly “vulnerable” (in this case, to COVID-19, but in other cases, due to pregnancy, or other medical conditions), is barred from simply labeling that employee “vulnerable” and taking steps to limit or change the terms of their employment on the basis of that conclusion. 

Rather, disability law is set up to empower employees to identify their needs, and then—under the most confidential circumstances possible—work with their employer to receive reasonable accommodations in consideration of those needs.

For example, a person whose medical history means that they might be more vulnerable to COVID-19 would work with their medical provider to provide documentation setting forth the risks and requesting a reasonable accommodation on the basis of those risks.

Employers are always welcome to let employees know the ways in which they may request accommodations. For instance, as libraries, museums, and archives consider limited or full reopening, employers can transmit those plans to their employees, and invite them to submit any request for accommodations based on the anticipated additional exposure to on-site visitors.

Think of it in the same way your institution might think of planning a large event that would invite the maximum number of people possible to your library or a rented venue. When planning for an event that will attract a large number of people, almost every institution will consider the need to accommodate people who use mobility devices. They might not contact those people in advance, even if they know they're coming…rather, the event will be planned with those accommodations in mind.

A good example of this, of relevance to the current COVID-19 crisis, is an employee with a respiratory disability.  As we know, people who have had respiratory illnesses in the past may be especially vulnerable to COVID-19 now.  These are people who may request accommodations—potentially including the ability to work off-site—based on a disability (a good list of accommodations for respiratory issues can be found here, on the Job Accommodation Network).

So, with all that being said, the answer to the member’s questions (Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?) is: NOT AS SUCH.

However.

Employers can most certainly, when otherwise allowed by law, policy, contract, and Executive Order, require employees to return to work.  After that…

Once an employer is able/decides to re-open, in addition to any re-opening conditions, the employer must consider any requests for reasonable accommodations.  This could absolutely include modifications for those whose disabilities render them vulnerable to COVID-19.  The employer can even generally pre-plan to offer those modifications.  Or they can make working from home, or working on-site, optional (if the work can, in the sole determination of the employer, still be done).  But what they can’t do is pre-sort their employees by “vulnerability.”

There is one final critical point to make here, at this time (May 19, 2020).

Institutions re-opening as part of “NY Forward,” may be required to monitor the health of their employees in a way that typically would seem intrusive, and in some contexts, would even be illegal.

For example, here is a sample of the monitoring required under NY Forward, taken from a sample safety plan.  NOTE: this is taken from the NYForward’s Phase One Retail Summary, and is provided as an example, only:

Employees who are sick should stay home or return home, if they become ill at work.

[Employers must] [i]mplement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors (but not customers), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.

Assessment responses must be reviewed every day and such review must be documented.

Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, employee may only return completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in past 14 days may only return to work after completing a 14-day quarantine.

As stated, this is the procedure for Phase 1 re-opening of limited retail operations.  When will libraries subject to closure in NY be able to re-open under NY Forward, and under what terms?  As I write this, the New York Library Association, NYLA, has this on their COVID-19 page, which states[1]:

With input from our partners from the Public Library System Directors Organization (PULISDO), NYLA has been advocating for libraries to be permissively included in phase two.  This would allow libraries to be a phased re-opening processed, to be determined at the local level, as early as when their region enters Phase Two.  The decision on when, as well as the steps and procedures for re-opening, are best determined locally, and in conjunction with the local library system and county Department of Health.

This is a critical service to association and public libraries by NYLA, and every board and director should be monitoring this site for updates.

Of course, some libraries may have determined that the current workforce restrictions don’t apply to them at all (that they are exempt right along with school districts and local governments).  And it is possible some libraries and museums, affiliated with larger institutions, will not be able to open until their region hits “Phase Four” (covering educational institutions).  And it may be that by the point libraries are given the go-ahead, the emergency has abated to the point where monitoring of employees won’t be required. 

But any library contemplating opening, in addition to being ready to consider ADA accommodations for those more vulnerable to COVID-19, needs to be considering these possible employee monitoring requirements, as well as the need to adopt any NY Forward-required Safety Plan, or similar documentation showing they are taking defined, affirmative steps to protect employee and public safety.

Public and association libraries developing the policies they need to re-open have a large, complex task before them.  Thank you for a question that explores a critical consideration of that work.

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[1] Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.

 

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

As we noted in our March 24 Ask The Lawyer answer (Audiobooks and Copyright Laws in a Pandemic), copyright law does still apply despite the pandemic and the many needs it has created for alternative outlets, resources and programming.

For a public library, unless the service is an adaptation under the Americans with Disabilities Act, any recording of a copyrighted work needs to be made with the permission of the rights holder. Under fair use doctrine, limited excerpts can be read, interspersed with commentary. But a full work presented alone in its entirety or in substantial excerpts, without the permission of the rights holder, may not be. This doctrine remains in effect.

One solution to consider is reading either works that are in the public domain, and/or works whose rights holders have given permission for this type of use during the pandemic or otherwise. Readers may have heard about LeVar Burton Reads, a pandemic podcast from the iconic Reading Rainbow host, in which Burton encountered this exact struggle and was given permission by noted authors including Neil Gaiman and Jason Reynolds. While most local libraries will not have Burton’s star-studded cast of Twitter followers from which to draw partnerships, they may find folks in their own communities who are happy to freely share their own works.

A list of ideas for children’s books in the public domain is here: https://concretecomputing.com/thoughts/list-of-public-domain-free-books-for-kids-by-grade-level/

Project Gutenberg is also often recommended for searching for works in the public domain: http://www.gutenberg.org/

This answer is being composed on May 9, 2020.  New York is still fully on PAUSE, but the Governor has divided the State into ten districts who must hit seven defined metrics to begin rolling back various restrictions.[1]  Careful prognosticators are cautioning that what is rolled back can also be re-implemented, so caution and flexibility are the watchwords of the times.

In this context, many libraries are considering a phased resumption or extension of operations, and to do so, may need to adjust many of their standing policies.

As the member’s question highlights, the stakes for such adjustments can be high.  The greatest risk in taking emergency and temporary measures are that: 1) they are not legal; 2) they create legal but mission-averse collateral consequences[2]; 3) they are legal and perfectly mission-aligned, but still just make people mad.

Right now, libraries don’t have the luxury of time to fully mitigate these risks.  But collecting, assessing, and documenting some steps, a library can do its best to avoid them.

Here is how to do that:

Step 1: Inventory your board’s authority and obligations

Library leadership seeking to temporarily adjust library policy to address COVID-19 must first assemble the following:

• The library’s charter
• The library’s bylaws
• The library’s policies
• Any collective bargaining agreement (“CBA”)
• Any employment contracts
• Any judicial orders, settlement terms binding your library[3]
• Any COVID-19-related resolutions
• Current budget
• The 202-series Executive Orders posted at https://www.governor.ny.gov/executiveorders

Many libraries will already have these assembled from previous such exercises.

 

Step 2: Inventory the specific policies your library needs to adjust

This “inventory” should include a citation to each policy your library needs to adjust, the basis of the need, any legal compliance considerations, what the precise terms of the proposed temporary change are, and, as the member writes, the reversion trigger of duration of the change.

This sounds painstaking and arduous, and it will be.  Fortunately, when it comes to the painstaking and arduous act of organizing information, libraries have a home team advantage. 

And don’t worry, in the next step I give you a chart to sort it all out.

 

Step 3: Identify what’s needed: alteration of the policy, or complete suspension?

In some cases, a policy will just need some small, temporary alterations to continue serving the requirements of the law and the needs of the library and its community.  However, some policies are so complex, or so rife with temporarily unsafe practices, they will simply need to be suspended.[4]

Here is a chart template that sets the “inventory” categories of Step 2, with examples the two types of adjustments:

1. Policy or obligation to adjust	2.  Basis of need to adjust	3.  Law or policy governing change	4.  Proposed Adjusted provision	5.  Reversion trigger or duration
Example: Policy temporarily altered   Policy B-2: Board Meetings	Limits on large gatherings and social distancing requirements requires limiting in-person contact	Board meetings are controlled by the Education Law Section 260 and Article 7 of the Public Officers’ Law (“Open Meetings Law”), but are temporarily governed by Executive Order 202.12.	As allowed by the EO 202.12, the Board shall meet via teleconference, and the audio shall be simultaneously available at a link on the library’s website, as well as recorded and transcribed.	This adjustment shall be in effect until the expiration of the terms of EO 202.12.
Example: Policy temporarily suspended   Meeting Room Policy allowing use on a reservation basis.	The Library wants to use the Meeting Room but must suspend community use to observe current social distancing requirements and health-oriented practices.	Executive Order # and #, as well as the usual laws governing use of library property.	To ensure observance of [cite EOs] the Meeting Room policy is suspended until two weeks after the last remaining restriction is lifted.	To allow time for cleaning and operational adjustment, the regular policy will go back into effect two weeks after the last remaining restriction is lifted.

 

Step 4: Contrast the adjustments with your library’s obligations

This is really a second look at the third column- “Law or policy governing change.” 

It encourages your leadership—and ideally, your lawyer—to take a deep look at any standing legal obligations, and make sure your temporary adjustment doesn’t run afoul of them.

For instance, in the Meeting Room Policy example, let’s say that, per the policy, the library had a standing, written agreement for the room to be used by a writer’s group on a weekly basis.  This might require an extra step in your adjustment to the policy, with some targeted outreach to cancel what might be regarded by the group as a written contract.[5]

SPECIAL NOTE FOR LIBRARIES WITH UNIONS: Step 4 is especially critical if there is a union contract involved.  Throughout this time of COVID-19 response, I have seen many examples of situations where a library’s prospective plans have been impacted by CBA provisions for emergency closure or other obligations. I have written about that at length elsewhere,[6] so for now, will simply say: in all of this a library’s union should be an ally and critical stakeholder promoting employee well-being, and hopefully the need for any changes to routine policy and procedure can be approached in that spirit. 

 

Step 5:  Diplomacy Check

Technically, this is not a “legal” step, but I can say that in many ways this step is the most important part of avoiding needless legal threats and hostility.

Step 5 involves taking yet another look at the chart, and adding other two columns, covering: “Who will be impacted by this policy change?” and “How can we roll out the change to lessen any negative impact?”[7]

Here is what these columns look like in my imaginary examples:

6.  Who will be impacted by this policy change?	7.  How can we roll out the change to lessen any negative effects?
Board Meeting Policy Example:     Everyone who relies on library board meetings as a chance to scour the budget and yell at the treasurer about how much was spent on new shelving, even though the purchase followed every bidding step required by state procurement rules.[8]	The library will put up a sign on the front door, and in the usual places where the library sends formal notices about the meetings, saying:    “As you know, our board is meeting via telephone and working to keep our library ready to serve the community!  You can hear our meetings at [link] or get a recording at [way].  We’ll have transcripts ready a month after the meeting.  Please keep in touch by sending your comments to [NAME] at [ADDRESS].”
Meeting Room Policy Example:   People who really, really just want to see their writing group.	The director will ask [STAFF] to outreach to the regular groups, to see if they need assistance finding alternate resources while we wait to welcome them back.

 

And with all that legwork done, we can now answer the member’s core questions:

Question 1: What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
The elements would be 1) a preamble setting forth the board’s authority, goal and process for the temporary changes; 2) a list identifying the policies that are temporarily suspended or temporarily altered; and 3) an articulation of the replacement policy or temporary changes.

 

Question 2: What are recommendations for the preamble of such an addendum?

Here is a template for the preamble:

The [NAME] Library was chartered in [YEAR] by the New York Board of Regents, and operates under the authority of that Charter, the New York Education and Not-for-Profit corporation law.  In accordance with that authority and in compliance with the Library’s bylaws [OPTIONAL IF UNION AGREEMENT OR OTHER CONTRACTS ALSO GOVERN: and all other applicable obligating documents], to promote the mission of the library, the safety of all it serves and employs, and the needs of the community at this time, the following temporary changes to the following policies are made:

And here is how you link it to the other elements:

[INSERT chart with only columns 1, 4, and 5].

 

Question 3: What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?

Here is template language for a board motion:

WHEREAS the State of New York is currently subject to Executive Orders governing the State’s response to the COVID-19 pandemic; and

WHEREAS the [NAME] Library’s mission is to [INSERT]; and

WHEREAS some of the Executive Orders impact the ability of the Library to fulfill its mission while abiding by its usual policies and procedures; and

[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to the terms of a collective bargaining agreement signed on DATE: and

[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to [variable]; and

WHEREAS the Library has developed temporary adjustments to its usual policies and procedures, with all due consideration of its standing obligations, to aid itself in operating safely and in compliance with the orders, and in period of recovery to follow;

BE IT RESOLVED that the following temporary changes, for the corresponding durations sets forth below, are enacted, effective immediately:

[insert chart with columns 1, 4, and 5]

AND BE IT FURTHER RESOLVED that the full chart setting forth these temporary adjustments shall be posted on the Library’s usual place for posting policies no later than [DATE]; and

AND BE IT FURTHER RESOLVED that the following measures to positively communicate these temporary adjustments shall be taken:

[INSERT measures identified in column 7].

 

Final thoughts

When using these steps, it will be important to remember that an individual library’s response will be informed by not only their unique documents and priorities, but which of New York’s ten regions[9] they are in.  This means that what works for one library won’t necessarily work for a similar library in the next county over.  Nor should one library be judged by what is being done at another.

And finally—and I have mentioned this in several columns lately, but I will mention it again—attorneys throughout New York State are stepping up to the pro bono plate these days.  Now is the time to see if your library can enlist an attorney familiar with municipal, education, employment law, even if it is just to take a fresh, hard look at your final product.  If you can’t find that attorney, you can ask for a referral from your local bar association.

By assembling the documents listed in this answer, and identifying your priorities and concerns in the chart, you’ll help that attorney help your library.  In addition, I welcome questions from local attorneys who are helping their local libraries pro bono; they can reach me at adams@losapllc.com, or my library paralegal Jill at libraryspecialist@losapllc.com.

As the member’s excellent question suggests, the more unified and well-developed the response of libraries can be, the more we can avoid challenges, and focus libraries’ energy on the business of serving the public.  Sadly, the need for that energy will be great.

Thank you for giving me the opportunity to answer this very important question. 

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[1] https://www.governor.ny.gov/programs/new-york-forward

[2] Like a writers’ group saying: “Forget it.  We’ll just meet at Starbuck’s.”

[3] For instance, if a patron brought a legal action under ADA, and the library reached a compromise it is legally bound to follow.  Most libraries will not be subject to any such restrictions, but I want to ensure they aren’t forgotten.

[4] In my experience, unless the law mandates that you have one (for instance, certain libraries must, under the Education law, have an internet access policy) suspending a policy is also the way to avoid inviting arguments with people who will try and word-smith your temporary adjustments.  As a lawyer, I do enjoy a good quibble, but there’s a time and place for it, and debating when a writer’s group can get back in the community room might not be the best use of energy right now.

[5] It really sounds like I am picking on this writer’s group!  I’m not, we’re a fan of writer’s groups in my law firm (they produce writers, who are part of our client base).  I think it’s just that in my mind everyone is, at this mid-May point, is very eager to resume normal social activity.  I know I am.  Meeting on Zoom is like eating low-fat olive oil.

[6] COVID-19 and part-time pay

[7] This is not a legal tactic tested on the bar exam.  I learned this from my mentors at Niagara University, where I served as General Counsel for ten years.  When legal strategy was proposed, their first thoughts were always about how it would hit the very real people involved. 

[8] One of my favorite quotes about this phenomenon is from Parks and Recreation: “So what I hear when I am being yelled at is people caring loudly at me.”

[9] My poor staff.  They just got used to New York being divided into nine library council districts, and 23 public library system districts.   Val, our keeper of the “library map,” should be getting danger pay.

 

As a prelude, readers may want to take a look at an earlier COVID-19-era “Ask the Lawyer” about library elections postposed per Executive Order 202.12, which ends with this promise:

“If and when we get an update or “further directives,” we’ll post any update to this answer.”

As you can see, it took a few weeks, but we got those “further directives” on Friday, May 1, 2020,[1] in Executive Order 202.26.

Libraries don’t miss much.  On Monday[2] May 4^th, we also got the above follow-up question.

So here is the promised update, and my answer to a conundrum like the one this “further direction” creates for the asking library.

But first…

If there is one thing providing this service to hundreds of libraries has taught me, it’s that running a library is hard.  And running a public library comes with an overlay of regulations and community politics that makes a hard job harder.

So for those libraries out there finding that this issue of rescheduled budgets and elections is making a hard job harder, I say: yes, it is.  The strain on your communities, staff, and leadership is growing every day, and it’s important to acknowledge that. 

Sometime, in the pressure of the moment, it can be hard to say that.  So, for libraries seeking a default way to unite and raise the spirits of your staff, leadership, and allies in information and community service, I suggest the following “2020 NY Libraries Chanty.”[3] Gather your board,[4] staff, and/or supporters on a Zoom call, or a teleconference, have them all face the direction of the library (this is important, even if you can’t see each other!), and recite:

It’s 2020. 

The books are still here. 

People still need us. 

These challenges are hard,

but we got this.

 

You can also add your own custom lyrics, like:

Located in a sunny glen

New Hartford Library faces ahead

Times are hard, the Town is strong

We’ll do yoga[5] here again ere long.

 

The importance of simple, affirmative, repeated affirmations like a chanty--or simply repeating a mission statement at the beginning and end of a meeting--can’t be over-stated--especially at this time. 

Further, since the notion of “normal” is starting to shift, it is vital that the slowly materializing “new normal” be infused with a united vision of a strong, community-focused, mission-forward library. 

This can be easy to overlook in the midst of emergency budget meetings and communicating about emergency closure.  A simple song or phrase, regularly repeated, can be a key component in buoying spirits and plotting a course for the future.

(And if you do craft a custom message, have a contest, because I bet your local youth can come up with better verses than I can.)

Okay, with the light verse out of the way, here is the hard stuff:

 

Timing of a School District Library Election

As you may recall, Executive Order 202.12 stated:

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

So what does 202.26’s “further directive” do?  First, it expands on the impacted elections (seemingly including ALL of them, not just those set for May or June, as in 202.12), and as the member writes, seems to give only two timing options for conducting your votes.

This timing is found near the end of the Order, which states through May 31, 2020:

Any district or special district, including, but not limited to fire, library, sewer, or water, that conducts an election and/or budget vote shall be rescheduled to September 15, 2020 and collection of signatures for nominating petitions is hereby suspended until further notice, subject to a process determined by a future Executive Order; provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.

However, a careful reading of the context of above-excerpted language[6] shows that those particular bullet of 202.26 only applies to “through May 31,” and that it pertains to “any district or special district” library.

In the meantime, earlier in this voluminous Executive Order (nine bullets deep), it states:

…[P]ublic libraries established and supported by a school district [may] re-notice an election noticed pursuant to this section. Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process. Such a vote may be managed by the school district or the library, at the library’s request.

If you had eight cups of coffee the day you read it, you may recall that in the answer discussing EO 202.12, we discussed that the EO did not impact all school district library elections, since by law, those have to happen before July 1, and 202.12 only covered elections through May.

This detail now comes roaring back into relief as we dissect EO 202.26.  Upon a close analysis, it can be seen that this Order gives school district public libraries more latitude than district and special district libraries, in paragraphs such as:

Sections 259 and 260 of the Education Law are hereby modified for any library election held on or before July 1, 2020, to eliminate any requirement for an application to access an absentee ballot, and each such eligible voter shall be mailed an absentee ballot with a postage paid return envelope.

If school district public library votes limited to the June 9/September 15 options open to district and special district libraries, this bullet about “any” election before July 1 would be unnecessary.

What does this mean?  Well, as the Order says:

Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Remember, both EO 202.12 and 202.26 modify Section 260 of the Education law, which (among other things) creates special rules for election and votes pertaining to school district public libraries. 

Section 260 provides:

7. The board of trustees of a public library established and supported by a school district shall, in addition to powers conferred by this or any other chapter, be authorized in its discretion to call, give notice of and conduct a special district meeting for the purpose of electing library trustees and of submitting initially a resolution in accordance with the provisions of subdivision one of section two hundred fifty-nine of this chapter. Such meeting shall be held prior to the first day of July but subsequent to the first day of April. Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting.

EO 202.12 did postpone any elections set for April or May (not June!), but left many details about petitions, notice, and voting for “further directive.” 

EO 202.26 now gives those further directions, and modifies Section 206 further to require a vote to happen either

…in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Further, the EO honors the autonomy of a school district public library by providing:

Such a vote may be managed by the school district or the library, at the library’s request.

What does this mean for a school district public library? 

First, they must work with their sponsoring district to obtain a copy of the guidelines developed for the absentee vote.

Second, they must decide if they have the capacity to manage the vote, or should request the district to manage it.

Third, if the library can manage it independently, they must abide by Education Law 206 and properly notice (or, as authorized, re-notice) and conduct the election and budget vote, per the guidelines adopted by their district, before July 1.

I see no provisions in Executive Order 202.26 limiting school district public library elections and budget votes to the June 9 or 15th dates. 

This might seem to be in contrast to the plain language of EO 202.26’s fourth-from-last bullet, which states: “provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.”

However, that fourth-from-last bullet does not apply to school district public libraries—it applies to “library districts.”  Any other interpretation goes expressly against language in the ninth bullet stating that school district public libraries are expressly confirmed as having the authority to run their own election.

So unless we get an even further directive, or the state realizes they created an unintentional hole in the process here, it is clear that school district public libraries still have the authority to conduct their elections before July 1^st…so long as they abide by the guidelines developed by their district for absentee voting.

I take this position on May 5, 2020, with a great deal of confidence, but must still acknowledge that I am out on a limb. These Executive Orders are constantly being revised and clarified by subsequent Executive Orders (202.26 “clarifies” 202.23’s provision about absentee ballots in its final bullet).  So while I believe this interpretation makes sense both under the law and within the borders of the document itself, school district public libraries scheduling, noticing and conducting their elections should conduct a clear, explicit, documented discussion with their sponsoring districts to make sure they agree that this is the way to proceed.

And we should all keep our eyes open for further clarification!

 

Trustee Election

Executive Order 202.26 also contemplates that getting candidates’ petitions over the finish line might be a little tough this year, so in that same “ninth bullet” devoted to school district public libraries, it provides:

Furthermore, the same provisions that are made for a school board trustee’s petition shall apply to a library board trustee’s petition.

These “provisions” for trustees’ petitions are in bullets[7] seven and eight:

• Sections 2018, 2032, and 2608 of the Education Law to the extent necessary to allow candidates be listed on ballots alphabetically, and that ballots for small city school districts shall be set 30 days before the election;
• Sections 2018 and 2608 of the Education Law to the extent necessary to eliminate any minimum threshold of signatures required, provided, however, an individual must meet any other requirements necessary to be placed on the ballot, including any applicable residency and age requirements;

The member asks “since we do not currently have any petitions filed for the open seat” should they simply appoint trustees, per their bylaws, until the next election?

These are incredibly unique (and hopefully rare!) circumstances, but remember, even at this unusual time, Section 206 (7), except as modified by Executive Order, governs school district public library elections.

That law specifically states:

Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting. [emphasis added]

This does not appear to be an “optional” process, and no active EO has changed it.  Therefore, if a school district public library does not conduct required election, the district must. 

Resorting to a bylaws appointment or deciding not to conduct the election is not an option.

Given all that, and considering the unique circumstances for 2020—incuding the newly relaxed requirements regarding trustee petitions—I advise that before not proceeding with an election process (and thus triggering mandated school district management of one), the board coordinate the quest for trustees with its overall response to the current situation. 

In other words, just like with all trustee recruiting, this is an opportunity to promote the mission of the library, and to recruit qualified people to help in the times ahead.

Here is a template recruitment notice for such an effort, referencing the current relevant Executive Orders, which could be modified for your library, and pushed out in both local media and on social media as well as the library's website:

Greetings from the [NAME] Library. 2020 has been an extraordinary year. In addition to changing our life in many ways, it has impacted the ability of potential trustees to petition to serve on the library's board of trustees (see Governor’s Executive Order 202.12).

Trustees play a vital role in our library: defining library policy, overseeing the budget, and deciding the library’s strategic directions.

The [NAME] Library’s current election, which due to emergency circumstances and per Executive Order 202.26 will be conducted via mail-in ballot, is scheduled for a [DATE]. If you are interested in serving as a library trustee, executive order 202.26 has changed the requirements, and now no signatures are required to put your name on the ballot.

If you are interested in submitting your name for election to this position , please [INSERT LOCAL GUIDELINES].

Service on the [NAME[] Library will be essential as our community recovers from the restrictions caused by COVID-19, and the years ahead. To help us serve that need, we seek candidates who know the community, who [INSERT BYLAWS’ TRUSTEE CRITERIA] and who believe that access to information and shared services will be a vital part of our recovery and the years ahead.

A final word: just like in the last answer regarding postponed elections, I must emphasize: if you can, now is the time for your school district public library to find a local lawyer to assist with your process, just to have back-up during uncertain times. 

I am always happy to get calls from local attorneys to strategize on these issues; sometimes local circumstances can throw a curve ball at an otherwise straightforward situation…and this situation is anything but straightforward!

School district public libraries: I wish you good luck in your recruitment, your elections, and your budget votes. 

---

[1] A day when many of us learned our children would not be return to school for the 2020 Spring semester.  So…not quite a “day that will live in infamy,” but definitely the day my law office receptionist got a new “duty as assigned”: remote kindergarten substitute teacher.

[2] May the fourth be with you.  Especially now.

[3] A “chanty” is a song sung (usually at sea) by people doing hard work together. Don’t worry, first amendment fans, this one is completely secular!

[4] If you gather the board this way, send a notice, since the notice provisions of the Education Law and the Open Meetings Law are still in effect.

[5] My Mom’s gentle yoga class at New Hartford Town Library has been on hold.

[6] Which, if you’re reading along with the Order, is four bullets from the end…jeez, I wish they’d number these things…

[7] “Bullet” sounds so punchy.

 

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

 

Before I answer this, I am going to share a story.  Trust me, it’s relevant.

When the workforce restrictions and ban on large gatherings due to COVID-19 started impacting libraries, the first wave of questions to “Ask the Lawyer” were about continuity of operations.  Specifically, they were about continuing payroll and still offering programs, even though staff would need to work from home.

Because Executive Orders and public health restrictions were happening at a rapid pace, answers needed to be developed quickly. 

If there is one thing the lawyers hate, it is quick decision-making.  We like precedent, we like time for research, and we like ample time to reflect on the implications of our client’s decisions.   In a world moving ever-faster, this is one of the things I cherish about my profession: it demands reflection.

But with libraries waiting for input, I didn’t have the luxury of time.  My research indicated that—barring a union contract provision or other express intervening factor—job expectations could be temporarily altered and library programs could continue, re-tooled to meet social distancing requirements (a/k/a “online”) while ensuring legal compliance and limiting liability.  But I couldn’t take a week or two to decide.

So I did what lawyers do when we don’t have time to let advice ferment—I turned to another lawyer.

I called an attorney I knew would appreciate the nuances of a question involving municipal law, Education law, taxpayer money, and the all-seeing eye of the NYS Comptroller.  I laid out the thinking that would eventually form my answers, and asked him to poke any holes he could see (I think I said “Pretend you’re the attorney for an angry taxpayer”). 

He asked a few well-informed, testing questions, and when my legal analysis held up, I felt good. 

But then he asked:

“Cole, do you actually think when this thing is all over, the Comptroller is going to organize a posse and hunt down libraries for trying to help their communities? I mean come on…people are in real need here.  Who would do that?”

I laughed, and it felt good.[1]  I thanked him and said I owed him one (in my world that means he gets to ask me a similar favor, any time, night or day, and I have to deliver).

Here’s the truth, though: although I laughed, my secret answer to his question was: Yes.  Yes, I do think that when this is all over, the Comptroller could audit and expose fiscal mis-steps by well-meaning libraries.  And I am also concerned that frightened tax payers and municipalities, searching for a way to “solve” fiscal panic, could use any small lapses in compliance or transparency to try and reduce budgets next fiscal year (just when they’ll be needing their libraries to assist with ongoing community recovery).  That is why the member’s question is so important.

That said, I got into this business because I believe that law, when well-developed and thoughtfully applied, can ensure justice and create the conditions for a happy society.  And I think the law—even as construed by the Comptroller—will allow for the actions proposed by the member, without the concern that a prohibited gift[2] or shady transaction was engaged in.

How?

I’ll give you three solutions.

But first…

Some Necessary Background

As a primer to each solution, just in case you haven’t checked in on fiscal controls for public libraries, every reader should visit NYLA’s excellent “Handbook for Library Trustees” (2018 edition), pages 50-58.[3]  This section sets forth all the routine requirements for properly accepting, retaining, spending, and accounting for both public and privately sourced funding. 

The solutions below, and the steps to set them in motion, build off the assumption that a library is following the fiscal practices laid out in those pages.

And just one more thing…

 

Safety First

Okay.  Let’s say your board is ready to assess and approve budget adjustments to initiate the acquisition and distribution of food and PPE.  Your staff and some volunteers are rarin’ to go.[4]   All you need to do is sort out the legal stuff.

But before worrying about how to fund it, or how to characterize the initiative in the budget, the first thing to consider is safety.

No matter what situation the library is in, a written safety plan, informed by OSHA and CDC guidelines, and ideally, confirmed with the local County Health Department, is the first priority for any such initiative.  Before approving funds, a board should review the plan for safety, and be assured that it is as well-developed as it can be (and again, if at all possible, confirmed by experts).[5]

So with that “safety first” caveat, here are the three solutions:

 

Solution 1: Acquisition and Distribution Only (No programming)

Objective: The library will acquire and distribute food and PPE, without any educational programming component or further conditions for participation (people can just stop by and pick up what they need).

Action Steps:

Step 1: Organizers (who could be board members, or staff, or volunteers…any combination is fine) develop and, with a county health official, affirm a safety plan for the distribution of the resources.  This plan should include how the items will be acquired, transported, and picked up, and what staff and volunteer resources will be used. 

NOTE: to ensure the safety of employees and protect the library from any liability, changes to routine job duties should be confirmed in a short letter referencing the safety plan.

Step 2:  Considering the need they hope to fill, and safety parameters, organizers develop a procurement plan, consistent with library policy and pages 50-58 of the Trustee Handbook, for the supplies to be acquired.  This plan should consider the appropriate sourcing and selection of supplies (PPE meeting CDC guidelines, food suited to re-distribution), and the need to follow relevant procurement laws.

NOTE:  On March 27, the Governor issued Executive Order 202.11, which suspends the public bid opening requirements of General Municipal Law Section 103(2) (of course, 103 only applies to purchases exceeding $20k…that would be a lot of PPE!).

Step 3: The Treasurer develops a budget recommendation for a budget change that will fund the procurement plan, and confirms to the board that any private funds to be used are not barred by donor terms (if all of the steps in this solution are followed, it will be a legal use of tax levy funds).

Step 4:  The board looks through its mission and plan of service and selects the language in those guiding resources consistent with a distribution for the goods to promote the health or general well-being of the community.

Step 5:  The board verifies the above steps, verifies consistency with bylaws and library policies, and sets a meeting under the modified procedures of the Open Meetings Law to adopt a customized version of the following resolution:

WHEREAS it is the mission of the [NAME] Library to [insert] and the plan of service for the library includes [insert];and

WHEREAS the state is currently in a state of emergency as a result of the ongoing COVID-19 pandemic; and

WHEREAS owing to the pandemic and state of emergency, the library’s area of service is in an unprecedented state of need with regard to fundamentals and supplies for personal safety; and

WHEREAS, owing to travel restrictions and the need of essential workers to serve our community, some people within our area of service may not be card-holding members of the community, but still be in need of supplies that will protect the their well-being, as therefore the general health of our area of service; and

WHEREAS the board finds it consistent with the mission and plan of service to adjust the current budget of the library to allocate resources to assist those within our community by supplying fundamental resources to enable the promotion of health and safety during a time of emergency; and

WHEREAS because the library is uniquely situated and widely regarded as a trustworthy and centrally located institution whose resources are freely accessible to all, and regards it as mission-critical to continue that role at this time; and

WHEREAS the library staff has identified a written plan for the safe allocation of such fundamental resources, and such plan has been reviewed by appropriate health officials; and

WHEREAS the library staff has identified and the board has duly reviewed a proposed plan for the responsible and compliant procurement of such resources, which is attached to this resolution and included in the minutes of this meeting; and

WHEREAS the Treasurer has verified that any private sources of funding do not bar the proposed procurement;

BE IT RESOLVED that the current budget be amended to direct [$amount] from [insert] to the acquisition and free distribution of food and personal protective equipment during the state of emergency, and during any period of recovery (the “Community Health Initiative Plan”); and

BE IT FURTHER RESOLVED that the acquisition of such resources listed in the Procurement Plan shall be conducted and accounted for per all the required provisions for procurement; and

BE IT FURTHER RESOLVED that the library shall effect the distribution of the resources only as set forth in the attached Safety Plan.

 

Solution 2: A Public Health Program

Objective: the library develops a program, consistent with its plan of service, to educate participants on PPE and the importance of good nutrition during a pandemic, and after a short educational program, makes supplies available.  This could even include innovative and fun ideas, like a recipe from a local chef, or instructions for canning food.

Action Steps:

Step 1: Organizers develop and, with a county health official, affirm the content of a short educational program, as well as the safety plan for distribution of the resources. 

Step 2:  Follow all the steps in “Solution 1,” but add this “whereas” clause to your resolution:

WHEREAS the library staff has [developed/identified] a short informational program on personal protective equipment and the important of good nutrition, and such program has been [reviewed by/endorsed by] appropriate health officials;

And add this further action to the resolution:

BE IT FURTHER RESOLVED that in conjunction with the distribution of fundamental resources the library shall promote the short informational program identified in the Safety Plan.

And finally…

 

Solution 3: The Partnered Program

Objective: together with another entity, and per a written agreement, the library allocates financial, and perhaps other, resources to a joint public health initiative to acquire and distribute supplies.

This one I can’t provide a template for: the permutations are just too diverse.  I can only say, when working with another entity, the library will need to consider every element listed in the above solutions: safety (first, always), mission alignment, employee needs, budget, and proper vetting of the plan by appropriate health officials.

Because of the risks related to compliance, a collaborative approach (unless it is just a donation to one of the above efforts…with that, take the money and get it done!) should be only through a written agreement that has been reviewed by the library's lawyer.  For this reason, it could be more cumbersome than other approaches, but in the event of a worst-case scenario, confirming all those details will be worth it.

 

For All Solutions

For any of the solutions I have outlined above, a critical contributor may be the library's insurance carrier. Right after the organizers start developing the plan for safety, someone should give your carrier a call, just to make sure there are no “exclusions” from the policy or conditions for your library to consider.

How do you check in with a carrier on this?  Just tell them: “Some lawyer who writes about library legal issues said we should check in with you before we do this.”

While your insurance carrier is probably used to the library developing innovative programming and serving a wide swathe of the population, the distribution of food and PPE during a pandemic is something they might want to weigh in on.  That said, in my experience, most carriers will encourage your initiative.  They might ask questions about where the distribution will take place, who is offering the programming, and how you are sourcing the supplies. 

Since the answers might impact your planning, it is better to call them early in the process, rather than just before the board meets (telephonically, as allowed by Executive Order 202.6[6]) to vote.

And who knows?  They might even have some helpful hints for you as you undertake to support your community.   This whole thing is keeping agents and adjusters awake at night, just like the rest of us.

 

Thank you

Okay, once I start waxing on about insurance, it’s time to pack it in.  I hope this was helpful, and I hope it can contribute to your library meeting the needs of your community.

Thank you for a great question, for your determination, and your dauntless innovation.

---

[1] This image his rhetoric inspired in my head--an army of GAGAS-wielding accountants, riding horses across libraryland, handing out fiscal frontier justice—makes me laugh now, too (but also cringe).

[2] In violation of Article VIII, Section 8 of the NY Constitution.

[3] One cardinal rule at “Ask the Lawyer” is “don’t reinvent the wheel.”  If library resources have already been used to develop solid guidance on a topic, we simply refer the member to that answer.  Lucky for me, librarians are innovators, so there are always new topics to address.

[4] Some libraries and library systems may have determined that, because they are regarded as a subdivision of government, the current workforce reduction orders do not apply to them.  Others will be organizing a program with the restriction that employees must (as of April 28, 2020) 100% work from home.  Still others will be coordinating terms of employment with a union.  This answer presumes your library is working within its own, unique parameters.

[5] By stressing this, I don’t mean to imply that the member is not thinking about safety (in fact, the care the member is taking about legal compliance suggests to me that they place a high priority on safety).  I just want to make sure that in any initiative to assist during this time of emergency, safety is the first consideration on the table.  At all times.

[6] As discussed in [2020 Pandemic Date Specific] Executive Order 202 and NY Open Meetings Law.

 

This is a great question.  An important question. And unfortunately, an all-too-infrequently asked question…

Because the answer is “YES.”

The risks and cautions and caveats related to use of employee-owned technology are endless, but here are the top five in my world:

• Educators working with FERPA-protected information should not store it on their personal devices. 
• Health professionals working with HIPAA-protected information should not store it on their personal devices. 
• Librarians working with patron information should not store it on their personal devices. 
• Any employee working with content restricted by contract should not store it on their personal devices.
• Any employee handling sensitive data (HR, fiscal, trade secrets, business plans) should not store it on their personal devices.[1]

This is my education/not-for-profit/library top five, but I could go on and on.  And while the first layer of risk posed by this issue relates to legal compliance, privacy, and security, underlying those primary concerns is the risk that in the event of alleged non-compliance, or another legal concern, the employee-owned device the information is hosted on could be subject to discovery—even if it is personal property.

What is “discovery?”  Fancy lawyer talk for being subpoenaed or otherwise brought in as evidence.[2]

How does a library, museum, educational institution or archive—especially one operating ad hoc from home as a result of pandemic concerns--avoid these concerns?

Here is a 3-pronged solution:

Prong 1: know your data.

Every institution should know the information it stores, and sort it by sensitivity. From there, policy (or at least, “standard operation procedures”) should inform how such information is stored, and when/how it might get transmitted and stored (if ever) on a non-proprietary device.

Here’s an example based on the different types of information stored and transmitted by libraries:  The templates for the brochures about a library’s story hour will generally be regarded as much less sensitive than the files regarding employees or patrons.  So, while transmitting the story hour templates from an institutionally-owned computer to a personal machine might be okay, you would never transmit the payroll or employment history records that way.  Policy and training should support awareness of the distinctions, and while the brochure templates might occasionally need to be accessed on employee-owned tech, the more sensitive types never should be.

Prong 2: know your tech.

Every institution should ensure employees who must access and store information regarded as sensitive have a work-issued account and device(s).  An inventory of that technology should be maintained, so the institution is aware of precisely where the information stored on it will be.

Barring that (whether due to time or budget), networks and resources should be set up to filter out the security risk of content going to and from machines with less robust security.

Knowing your technology is set up to meet the demands of your institution’s more sensitive data is key.

But there’s one more thing…

Prong 3: Work to minimize risk, even if you can’t eliminate it.

Don’t let “perfect” be the enemy of “good.”

Stuff happens:

• A presentation where suddenly you can’t access a work file, but engineer a work-around using a Gmail address;
• An emergency situation where a sensitive file has to be opened on a home computer;
• A jump drive with both your photos from a family trip, and proprietary information, is uploaded onto a personal laptop.

 

Everyone[3] has had an instance where convenience triumphed over security.  But that should be the exception, not the rule.

Even during times of emergency response and sudden adjustment (read: pandemic, or a crisis at the location of your organization), awareness of an institution’s data and technology can be used to minimize the exposure of more sensitive information to risky situations—even if sometimes, the end result is less than ideal.  Admitting your institution is not perfect just means that in less reactive times, it must use the budget process and long-range planning to further reduce the risk, as time goes by.

And that is how to reduce the risk of employee tech getting subpoenaed in the event there is a content-related legal claim.[4]

I am grateful the member asked this question, because particularly right now,[5] this is a really common issue (although it remains a serious issue in less panicky times). So common, in fact, that I call it the “chocolate in the peanut butter” question.[6]

Why is this legal concern named after such a delicious combo?  Because the imagery really isolates the problem.  When it comes to using employee tech, the convenience can be all too seductive.  It can be, in fact, deliciously easy.

One reason to avoid this, among many, is because that technology could be subject to discovery.

But good risk practices can minimize this risk (even if you indulge on occasion). When working from a remote location, if you do not have time or the technology to take work devices with you, use of private devices, if necessary, should only be for only the lowest-risk content.  Further, to minimize the risk of data loss, non-compliance, and security, such use should only be after a qualified professional has determined it can be done with no risk, and employees are trained to keep things confidential, and remove proprietary content after it is needed.[7]

---

[1] By “personal devices” I also mean personal email accounts, Zoom accounts, cell phones, tablets, laptops, DropBox folders, etc.  All content handled by employees for institutional purposes should be on institutional resources.

[2] How does “discovery” play out?  Lots of ways.  For instance, once I was defending a person whose personal laptop was subject to “discovery” in a civil case.  We didn’t surrender the laptop.  Normally, that might have posed a problem, but in this case, the laptop had been destroyed during a fight at a concert many years before.  We had to produce the old police report to show that the property really had been destroyed, and we weren’t just resisting discovery.

[3] Okay, this is hyperbole.  Hopefully it’s not “everyone” (I’m looking at you, hospitals, therapists, and the IRS).

[4] This answer does not contemplate the related but distinct issue of employer resources being use for personal purposes, or to harass others…which is the dark mirror of this issue.  But good practices in one regard will lead to good practices in the other!

[5] Largely unforeseen, 100% order to work from home impacting most businesses.

[6] …although when I am feeling dramatic, I call it “data bleed.”

[7] Bearing in mind the deleted content is often never truly deleted…and thus could still be subject to discovery!

 

This question is from a school district public library.  Before answering it, I called the library director who sent it in.

Why?  Well, first, I wanted to introduce myself.  When a question has a lot of nuance and potential long-term ramifications, I like the member to know the answer comes from a real human being, not just a faceless attorney in Buffalo, NY.

Second, I wanted to check in on some details.  As other school district public libraries can attest to, the minutia of elections and budget votes can get very technical—as well as personal (and sometimes passionate). Getting those details right is both an art and a science.

And finally...I'm not gonna lie. Sitting alone in my office, with my treasured staff working from home, cut off from our normal busy but generally cheery atmosphere, I might have been a tad lonely.  Although anyone who works with me will tell you that half the time I am working in an introverted and ADD-infused cloud, four weeks of pandemic isolation have taken their toll. It was nice to call the member and connect at a human level.

How did the conversation go? I'll keep that part confidential.

Let’s take a brief aside to review the “Ask the Lawyer” model.

For members who use “Ask the Lawyer,” there are often two concrete results from the submission of the question:

The most common result is a post to the “Recently Asked Questions” (“RAQ”) site, which will contain generic guidance with no identifying details, so a general assessment of the legal issue can be shared with the largest possible impacted library community.

The second result, which doesn't occur for every question (but it's still pretty frequent) is a “confidential memo” just for the member and their council.  This “confidential memo” supplements the general input with confidential legal advice, and lets us address any unique details that pertain to only that member.

This is how the 3R’s maximize the resources (legal fees) used to get the legal guidance and advice, while also enabling timely services to their members.  And as I’ve reviewed, it is also how lonely attorneys can occasionally arrange a phone call to socialize about a legal need during pandemic-imposed isolation.

So, again…how did the conversation with the member go?  As I said, it’s confidential. But let's just say, when I call a librarian, I expect some good conversation, and this member did not disappoint.

And with that, here is my generic “Recently Asked Questions” input on this situation:

The first priority in assessing any matter related to an election or budget vote is to consider any past extraordinary details—such as a previous controversy or contested procedures.  As they say in the “Music Man”: You gotta know the territory.[1]  If there has been any past issue or hostility, planning to navigate a postponed election with those sensitivities in mind is wise.

Next (and this is essential), is setting up to ensure consistent and well-communicated support about the election from leaders and stakeholders: in this case, the board, the staff, the library’s system, the local school district, and (even if the election is not in their purview) the county Board of Elections.  This includes communication about the postponement, and the re-set proceedings.

Why is this a critical step? When you're sailing into uncharted waters, it's good to sail with a fleet, and to cross-check each other’s navigation.

And finally (but critically), before making any announcements or plans, check your charter, bylaws, and date of formation.  Some libraries will have provisions in them relevant to this situation, and per sub-section 8 of Section 260 of the NY Education Law (controlling school district public library elections), a library chartered before April 30, 1971 may have a bit more leeway in these matters, as a matter of law.  Further, your library may have its own notice requirements or procedures, on top of the base-line legal requirements.

Now, as to the present circumstances, let’s parse the relevant content of Executive Order 202.12:

Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

As if this whole exercise isn’t going to be complicated enough, the first thing I need to note is that, under Education Law Section 260 (sub-section 7), school district public libraries have between April 1 to the end of June to hold their elections.  So just be aware: EO 202.13 did not delay all scheduled elections (only those set for “April or May).  So, for this answer, we’ll only address elections set for April or May.

Next, we need to check in not only with Education Law Section 260, but its companion Section 2018, which addresses the filing of petitions:

Each petition shall be filed in the office of the clerk of the district between the hours of nine a.m. and five p.m., not later than the thirtieth day preceding the school meeting or election at which the candidates nominated are to be elected. [emphasis added]

And of course, Education law Section 2004, which requires notice be given:

“…at least forty-five days before said meeting, in two newspapers if there shall be two, or in one newspaper if there shall be but one, having general circulation within such district. But if no newspaper shall then have general circulation therein, the said notice shall be posted in at least twenty of the most public places in said district forty-five days before the time of such meeting.”

So, with all that, what are the answers to the member’s questions?

First question: Do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date?

My assessment is that the Executive Order is sufficient notice that the vote is postposed.  However, once the proceedings can be re-scheduled, a library will need to publish new notices. Further, it is important to note that the EO hints there will be “further directive as to the timing, location or manner of voting for such elections” coming from the Governor (or perhaps guidance from NYSED, upon direction of the Governor).

I imagine such “further directive” will take into account that typically, libraries must give at least 45 days’ notice.  But in any event, right now, school district public library elections are in a holding pattern, and the boards and leadership need to stay alert for further directions on next steps.

That said, a discussion with stakeholders, to ensure your library is ready to set its proceeding when the time comes, might be wise.  This could include a notice about the postponed proceedings, and direction as to where to look for next steps.

Here is a template:

Consistent with Executive Order 202.13, the [NAME] Library’s elections and budget vote are postponed, and the library is awaiting further direction from the state regarding rescheduling.  The Library will publish further notice and information to the public regarding the election as soon as we are able.  Questions about elections in [COUNTY] County can be directed to the [COUNTY] County Board of Elections at (###)###-####.

Second question: Can we reopen the opportunity for people to file a petition to run for the board?

This is fascinating.

The way I see it, 202.13’s “postponement” of elections means the thirty-day deadline for filing a designating petition will automatically be re-set to thirty days before whatever the new election will be.  This is because under Education Law Sections 260(8) and 2018, the deadline for filing is not a fixed date, but a deadline calculated based on the date of the election.  So, I think being ready to ask people to step up and get designated so you have sufficient nominees—especially if there were none duly submitted by the last deadline—is a good idea.

Of course, right now all collection and filing of designating petitions are also “postponed” (see the first excerpted paragraph of the Executive Order).   And the deadlines for petitions are going to be tough to hit before the July 1 statutory deadline. And at some point, there may be a decision that previous submissions will not be re-opened.

The next “directive” on this issue will have to tackle the issue of meeting the notification and petition filing deadlines, as well as the implications for those libraries that were in the notice period, and those that were not.

This is where conferring with the local Board of Elections officials, and the school district, even if they do not oversee your library’s elections, will be so critical.  They will have the insight and probably some inside information to share about how this will be configured.  And for those libraries with a lawyer, this is the time to involve them (before final decisions are made).

To put this in context, right now although critical, the election is probably only one of the numerous high priority issues your library board is considering. First and foremost is likely the on-going well-being of the library and its role in the anticipated recovery of your community.

With that in mind, I suggest any board facing this situation also review the guidance on using a crisis management for public libraries, and factor the monitoring and messaging around this issue into their response plan.

If and when we get an update or “further directives,” we’ll post any update to this answer.

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[1] Has anyone ever done a poll to see how many librarians have been serenaded with the “Marion,” song?  And taken a further poll to see if it is now regarded as harassment?

 

I love learning about new assets communities can access through their library.  Tools, ties, seeds, toys…this list is endless.

This is the first question “Ask the Lawyer” has received about health monitoring devices and medical supplies, and the member has rightly pointed out that there is a lot to consider in such a venture.  How can such lending be done with an emphasis on safety, and limiting legal risk for a library?

But before we delve into disclaimers and liability (yes, a disclaimer is going to be needed), let’s confirm some terminology.

In New York, Telehealth is defined[1] as “the use of electronic information and communication technologies to deliver health care to patients at a distance.”

Meanwhile, Telemedicine is defined[2] as “two-way electronic audio-visual communications to deliver clinical health care services to a patient at an originating site by a telehealth provider located at a distant site.”

In other words, Telemedicine is also Telehealth--but Telehealth is more than Telemedicine.  “Telehealth” is like the largest figure in a Russian nesting doll set, with Telemedicine (audio-visual communication of services) contained within—but separate.

The equipment being considered by the member are equipment for Telehealth, not the transmission of Telemedicine.  This has a lot of ramifications for liability and legal compliance, so it is important to take care in making the distinction from the start.

When considering the cataloging and lending of equipment for Telehealth, there are two other critical terms:

Store-and-Forward Technology, which is defined[3] as “asynchronous, electronic transmission of a member's health information in the form of patient-specific pre-recorded videos and/or digital images from a provider at an originating site to a telehealth provider at a distant site.”

…and…

Remote Patient Monitoring, which is defined[4] as “the use of digital technologies to collect medical data and other personal health information from members in one location and electronically transmit that information securely to health care providers in a different location for assessment and recommendations.”

“RMP,” as it is also called, includes the collection of information such as vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings; the type of monitoring the devices in the member’s question are about.

Okay, with that established…

YES, in lending such equipment, there are some concerns about risk and liability.  YES, a disclaimer is a good idea. And there are a few other considerations, too…related to procurement, cataloging, and lending (but in the end, all relevant to the issues of risk and liability).

How does a library address those considerations?  There are many details, but here is a process to systematically take them on:

Step One:  Make it incremental

What do I mean by “incremental?” 

I mean, instead of cataloging a kit of equipment as a single item, each item in the kit (and perhaps the bag itself) should be cataloged as a separate item.  That way, when the patron borrows the bag and the equipment, they will borrow them as separate components…the way another patron might check out the entire “Harry Potter” series and a DVD of “Goblet of Fire.” [5]

Why? Because each piece of health-related or medical equipment comes with its own set of legal terms (warrantees, disclaimers) and operating instructions.  By lending that equipment on a piece-by-piece basis, rather than in kits with multiple components checked out as a single unit, a library will be able to use that level of detail to take the liability-limiting and risk management steps I describe below.

 

Step Two: Know the devices

The member’s question lists the following telehealth equipment: “…a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment.” 

This list makes sense, since “remote patient monitoring,” as described by the New York Department of Health,[6] uses instruments to measure vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings, so that information can be used to provide telemedicine.

How can a library “know” the equipment?  Before a Telehealth device is added to a catalog, a library should a) confirm it is commonly used for telehealth, b) confirm it meets your library’s procurement requirements; c) confirm that the precise device is registered with the FDA, and d) use the FDA site to confirm it has not been recalled.

The best place to do this is: https://accessgudid.nlm.nih.gov/.

 

Step Three: Plan to include the instructions

If the device comes with instructions, ensure the physical copy of the instructions is lent along with the device,[7] and generate a link or QR code so the instructions (in an ADA accessible format) can easily be found online.

This is so the borrower is empowered to use the device per the manufacturer’s instructions.  This is a key component of limiting the risks associated with lending devices of any kind—including health-related equipment.

 

Step Four: Set the Requirements for procurement

In addition to the Procurement Policy your library must follow, the following requirements should be in the RFP or RFQ for each device:

• Will not transmit data OR any data transmission capability the device has meets current transmission requirements for telehealth;
• Any digital memory the device has must be capable of deletion with no ability to recall the prior data;
• Any device supplied must be registered with and thus listed on the FDA’s medical device database (and searchable by name or number);
• There should be no parts intended for insertion into the body;
• There should be no need for replacement parts;
• There should be clear instructions for cleaning the device between uses, and those instructions should be a process staff can perform safely;
• The purchasing decision should consider if/how the product is powered (battery, charging station) and plan to support that during lending;
• There should be no safety recall.

 

Step Five: Be ready to continuously monitor for recall

This is critical—and why any device included in the collection should be registered with the FDA.  Prior to lending (every time), it should be confirmed at https://accessgudid.nlm.nih.gov/ that the device has not been recalled by the FDA.

 

Step Six: Confirm Functionality after Every Return

This, too, is critical.  Prior to lending (every time), it should be confirmed that the device is functioning properly, as described by the product’s instructions.

 

Step Seven: Consider bringing in a ringer

Prior to making the equipment ready for lending, consider launching the collection in connection with a public health partner in your community.

Why?

The ability to borrow a thermometer, or a blood pressure cuff, or pulse oximeter, could be a game-changer if a person’s own equipment is stolen, damaged, or lost.[8]  For people in rural areas who must order equipment and wait for delivery, it could facilitate the immediate start of Telehealth care, or ensure continuity of care while a replacement is on its way.  This project you are considering could save lives.

That said, people should only use telehealth equipment in connection with ongoing care from their health care provider. 

I am well aware of the cruel irony in this caveat.  Not all people have access to reliable health insurance or ongoing healthcare,[9] and thus might need to DIY their care with telehealth devices. But the concept of telehealth ONLY works if it is in conjunction with a health care provider. 

No one should be borrowing a library’s telehealth resources to use them in a health care vacuum.

This is where a public health partner could come in.  If the equipment is linked to information about a clinic or other local health care provider in your region who can help a patron connect to care, you can mitigate this risk, and urge the proper use of Telehealth equipment, while respecting the privacy and autonomy of patrons. 

This awareness should be part of your disclaimer.

 

Step Eight:  Yes, you should include a disclaimer

…and it is on a device-by-device basis.

Of course, any disclaimer should only be adopted after review by your library’s attorney AND insurance carrier.[10]  But here is a place for them to start:

“Prior to being borrowed, this equipment has been confirmed as not under recall by the United State Food and Drug Administration (“FDA”), and to be functioning per the manufacturer’s specifications. 

However, the [NAME] library cannot confirm that the equipment will remain functional or unrecalled while it is on loan.  To determine proper functioning, please refer to the instructions, and check the recall status of the device at at https://accessgudid.nlm.nih.gov/.

This is borrowed equipment.  You must follow the cleaning directions in the instructions before using this equipment. 

Please review the instructions and notify the library immediately at (#####) in the event the equipment is not functioning as the instructions describe. 

Use of this equipment should only be in conjunction with service from a licensed health care provider familiar with your medical needs. 

In the event you do not have access to a licensed health care provider, call [community health partner] to inquire about health care in the [NAME] region.  The library has confirmed that this resource can assist you in finding care.

In the event of a medical emergency, dial 911.”

 

Step Nine:  (If You have Room) Let them Know Their Rights

In the State of New York, patients being treated through telemedicine have certain legal rights. [11] If feasible, it would be good to foster awareness of these legal rights when lending telehealth equipment.  

Here is a sample notification:

This equipment is for temporary use when being treated via Telehealth.  It should only be used in connection with service from your health care provider.

If you are being treated by telehealth in New York, here are your rights:

Any practitioner starting a course of telemedicine should provide a patient with basic information about the services that they will be receiving via telehealth, and obtain their consent to participate in services utilizing this technology. 

Telehealth sessions/services may not be recorded without the member's consent.

Patients have the right to refuse to participate in services delivered via telehealth and must be made aware of alternatives and potential drawbacks of participating in a telehealth visit versus a face-to-face visit.

Patients must be informed and made aware of the role of the practitioner at the distant site, as well as qualified professional staff at the originating site who are going to be responsible for follow-up or ongoing care.

Patients must be informed and made aware of the location of the distant site and all questions regarding the equipment, the technology, etc., are addressed.

Patients have the right to have appropriately trained staff immediately available to them while receiving the telehealth service to attend to emergencies or other needs.

Patients have the right to be informed of all parties who will be present at each end of the telehealth transmission.

Patients have the right to select another provider and be notified that by selecting another provider, there could be a delay in service and the potential need to travel for a face-to-face visit.

 

Step 10:  Plan and budget to clean the Equipment Upon Return

However the instructions state the equipment should be cleaned, it must be cleaned (every time).  Developing a protocol to do this safety is something your library must consider during both procurement and budgeting for the staff time needed to lend and maintain the equipment.

 

And that’s it! 

Okay..I admit “it” is “a lot.”  The big take-away here is that, in addition to considering liability concerns and a disclaimer, your library must ensure it has the staff, storage, and maintenance capacity to engage in appropriate risk management.  That will take some planning, and some resources beyond simply buying the equipment.

That said, I suspect it will be worth it.[12]

I hope a worthy initiative like this can find a strong community health partner in the member’s region.  With a health care supporting your staff in selecting the right equipment, choosing the best brands, and pushing out information about patient rights and public health, this program could truly save lives.

Please let me know how it goes.[13]

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[1] NYS Public Health Law § 4406-g (2).

[2] NY CLS Pub Health § 2805-u 1.(d).

[3]  NYS Public Health Law § 2999-cc, 6.  PLEASE NOTE: if your library is considering providing equipment to assist with “store-and-forward” a rigorous ethics, security, and HIPAA compliance check should be part of procurement.

[4] NYS Public Health Law § 2999-cc, 7.

[5] In Harry Potter, they practiced telemedicine via the Floo Network. (P.S. If you think I threw in this Harry Potter reference to enliven a dull list of footnoted citations, you are right!).

[6] As found on April 14, 2020, at https://health.ny.gov/health_care/medicaid/program/update/2019/2019-02_speced.htm#definition

[7] I appreciate that this may involve the use of a laminator or other cool process libraries use to unnaturally extend the life of print media.  Wait until you see Step Ten.

[8] Or if the patron is in a coverage dispute with their carrier.  I have had some experience with this; not fun.

[9] https://www.health.ny.gov/press/releases/2019/2019-10-02_uninsured_rate.htm

[10] Your carrier should also be apprised of the undertaking, in general. They may even have some helpful tips for you in developing the lending program.

[11] As set forth in the NYSDOH guidance document found on April 14, 2020, at https://health.ny.gov/health_care/medicaid/program/update/2019/2019-02_speced.htm#definition, with citations to relevant laws and regulations.

[12] As I write this, the state is still on “PAUSE” due to COVID-19.  The use of telehealth during the time has SOARED.  And reading projections for the future, it will only increase.

[13] Adams@stephaniecoleadams.com or call at (716) 464-3386.

 

I have spoken with many public libraries about their experience considering and applying for the different aid packages currently being offered in the wake of the pandemic.  I also have the benefit of working with an associate attorney who once worked for the SBA, closing disaster loans.

So, in addition to the guidance being offered by New York State Library Development and the New York Library Association, which I encourage all libraries to pay ongoing attention to, I have two things to add:

First, as Mr. Rogers would say:

Remember, you are special.

Listening to the different experiences, and most importantly, reading the law, regulations and guidance, I can say that each and every library, library system, and resource group in the state of New York is differently situated under these aid packages, including PPP.

The is because, while the State of New York has created uniform frameworks for fostering libraries, within those frameworks, there is great room for self-determination and autonomy.  That “room” means that every library has a different business structure, banking arrangement, budget profile, cash flow situation, grant and contractual obligations, approach to payroll, personnel policies, union obligations, commitments to the community, and plan of service. 

This array of approaches and obligations create a unique identity that will be uniquely impacted by the current crisis.

Which brings me to my second point, which is based on my favorite baseball phrase:

Run it out.

Run.  It. Out.

What does that mean?  For those of you who don’t play baseball, it means…

No matter how soft a pop fly you just hit--no matter how easily the pitcher just snatched the ball out the air and is sending it hurtling to first—once the ball is in motion, drop your bat, and run the bases.  Even if you think you can’t possibly make it home.  Even if you are pretty sure you’ll be tagged out before you take 5 steps.  Even if you suspect the catcher is laughing at you.  If your library’s budget or ability to operate is being negatively impacted by COVID-19, your board owes it to the library and its community to explore every avenue.  That includes PPP, and other emergency lending.

“Running it out,” of course, should not happen in a vacuum.  It should happen as part of a well-considered, diverse plan for dealing with the current crisis (to that end, see my “Ten Things” column about boards and emergency response).  But PPP and other aid should not be off the table until…they’re off the table. 

To do this, be ready to assess the library’s fiscal position.  Are you facing a pinch now, or more worried about next year?  You also need to work closely with your bank, and be ready for both of you to closely assess your special identity (charter, bylaws, policies, payroll, obligations, cash flow) vis-à-vis the SBA’s rules for application.[1]

For some of you, your library will get tagged out before you round first base.  Your bank may decide you don’t qualify, or your board may even assess that that PPP or other emergency relief aren’t for you.  But others of you just might make it home.

And if even only 5 libraries in the State of New York qualify for PPP and are able to help their communities recover from the impacts of a pandemic, because they did everything they could to get the aid they need to function, then the effort will be worth it.

Does your library qualify for PPP?  If you need it to stay in the game: run it out. 

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[1] https://www.sba.gov/sites/default/files/2020-04/PPP--IFRN%20FINAL_0.pdf