Employment

The New York State Education Department’s Office of the Professions, which oversees the licensure of social workers, describes social work this way:[1]

Social work is a profession that helps individuals, families, and groups change behaviors, emotions, attitudes, relationships, and social conditions to restore and enhance their capacity to meet their personal and social needs.

Social workers are trained to provide a variety of services, ranging from psychotherapy to the administration of health and welfare programs. They work with human development and behavior, including the social, economic, and cultural systems in which people function.

Sounds like a person who would be handy to have in not only a library, but perhaps in line at the grocery store, in a public park, and sitting next to you at a football game, right?

So, what would it look like (from the legal perspective) for a social worker to be embedded to work in a library?

Broadly speaking, there are three ways a social worker could offer services within a library or other not-for-profit/educational setting. Each way has its own legal and practical considerations.

The first way is for the library to employ the social worker. This would require the library to implement specific policies, resources, and insurance coverage (in other words, careful planning a budgeting), but it is doable.

The second way is for the library to contract with a social worker or agency to offer their services at the library. This would require less policy development and insurance coverage but would also require careful budgeting and a very thorough contract.

The third way would be for the library to cooperate with local departments of health and county social services to explore having professionals from the government agency on site.  In many ways, this would look like the “contract” option, but the agreement would likely be able to be far less formal.

For a variety of reasons, option #3 may often be the easiest, since there is already a lot of infrastructure in place for a county agency to support its local library or library system (the “insurance” part of things will be much simpler). That said, #2 is also fairly simple, so long as the social worker/agency can provide the required insurance coverage, and the library and provider can agree on a contract.

And option #1—the employment option—is not impossible. It just brings the biggest up-front challenges: develop a job description, policies, procedures, and insurance to support the position and all of its record-keeping and other ethical/professional obligations, and to ensure there is a firewall between the social worker’s records and other library records.

For a library that wants to explore this, it would be good to conduct a brainstorming session about what specific benefits the library would want to get from it and how they relate to the library’s plan of service.

For example: is the primary purpose so frontline staff can immediately refer patrons who may be in distress to a nearby resource for immediate assistance? Or is it so the social worker can offer community workshops and collaborate with staff on healthy programming? Once the primary goals and add-ons are determined, a job description/business plan (for option #1) or request for proposals (for option #2) could be developed to explore making it happen; the documents would address the legal/regulatory/risk factors (like ethics and how client records are kept, since they wouldn’t be “library records”).

The good news is that in 2024 there are actual, living models out there for these approaches!  While we didn’t delve too deeply, here are some links to New York libraries with social workers on site or in affiliation:

Baldwin Public Library

Brooklyn Public Library

Emma S. Clark Memorial Library

Farmingdale Public Library

Lindenhurst Memorial Library

Middle Country Public Library

New York Public Library

Thank you for a great question!

Great questions!

Let's tackle[1] them:

Is this true?

Yes.  If you would like to look up the text of the law, which went into effect on November 13th, 2023, you can find it here: https://www.nysenate.gov/legislation/laws/LAB/590.

Does this new law really apply to ALL employers in New York (even a town or village public library)?

Yes.  Unlike other sections of the Labor Law, which sometimes define "employer" in a way that can exclude certain public libraries, the new Section 590(2) is part of Article 18 (“Unemployment Insurance Law”) of the Labor Law; Article 18 applies to ALL employers in New York State, even government entities.

Does this new law apply even if the employee is resigning or retiring?

Yes.  It also applies of the employee was on a contract that expired, was on a grant that ran out, was a seasonal employee, or any of a number of other reasons why a person who once has a job no longer has a job.[2]  Basically, if an employee is no longer an employee, or if an employee's hours have been cut to below 30, the notice must be provided.

Does this new law apply to no-show employees, those who requested to work less hours, or others who may have abandoned their employment?

Yes.  Even when an employee quits by attrition, asks to work below 30 hours a week, or goes away on vacation and never comes back,[3] an employer must determine what date is the date they were "separated" from employment, or the effective date of the reduction, and give the required notice.

Is there a form for this notice?

Yes!

The New York Department of Labor's newly revised "Record of Employment" form can be found at https://dol.ny.gov/system/files/documents/2023/11/ia12.3_0.pdf.

When does this notice have to be provided?

The new law requires employers to provide the notice "upon separation."  The DOL form's instructions say to "give this form to anyone who is permanently, indefinitely, or temporarily laid off; discharged; quits; or has their hours reduced to 30 or less each week"—with no mention of precise timing.

For that reason, until there is further guidance, the notice must be given as soon as possible.

For those whose status change is easy to pinpoint (for instance, when an employer tells an employee their job has been eliminated), the completed form should be given at the same time as the notice of termination. 

For slightly less definitive situations—such as when an employee fails to show up but doesn't call or quit—the completed form should be mailed[4] as soon as the failure to show up is converted to a termination.

This means a few things:

First, it means that if an employer has been a bit loosey-goosey[5] about when people are "separated from employment",[6] they need to tighten things up going forward.

Second, it means that if a public library has been a bit unclear on who provides the unemployment insurance (the library? … the municipality?), clarity on that topic must be achieved (and demonstrated via the "Record of Employment" form).

Third, for those employers who maintain a checklist of items to do when an employee is "separated from employment" (return keys, terminate passwords, update website and social media access, etc.), the "Record of Employment" form can be a new item on the "to-do" list.

Fourth, for those employers who must follow Labor Law Section 195(6),[7] your organization is already obligated to confirm separation of employment in writing within 5 days of the date of termination.  For employers obligated to provide this "195(6) letter", the "Record of Employment form" information regarding the last date of employment should be consistent with the information in the 195(6) letter.[8] 

Why was this law passed?

When considering this law, the New York State Assembly wrote in the legislative memo:

Many workers, when laid off or subject to a reduction in working hours, do not realize they are eligible for unemployment assistance.  Particularly in the case of partial unemployment assistance there is a lack of awareness about eligibility. To compound this issue, employers are disincentivized from informing their employees about eligibility because their unemployment insurance payments may increase when employees or former employees file for unemployment assistance. In the wake of catastrophic job losses caused by the COVID-19 pandemic, it has become clearer than ever that underemployed workers need robust public support mechanisms to weather an economic storm.  By requiring employers to inform employees who are laid off, or who have had their hours reduced, of their potential eligibility for unemployment assistance, this bill bestows on workers better awareness of their rights and options for supporting themselves and their families when they need it the most.

In other words: people entitled to benefits didn't know they could get them.  This new notice requirement is to make sure such people are aware and are able to timely apply.

Is there a model policy for this law?

Employers do not have to have a written policy to comply with the law, but for those who want to adopt a policy to help assure compliance, here is a template[9] to work from:

Policy

To document compliance with Labor Law Section 590(2), it is the policy of the INSERT NAME to immediately provide each former employee with a completed "Record of Employment" (as such form is maintained by the New York Department of Labor) upon:

• Notice of termination
• Confirmation of separation from employment due to retirement
• Termination due to abandonment of the job by the employee ("no-show")
• Voluntary resignation
• Reduction of hours to less than 30 per week

Such documentation shall be as contemporaneous with the separation of employment or reduction of hours as possible, but in no event shall it be later than five (5) days after the last date of employment or effective date of the reduction.

Regular readers of "Ask the Lawyer" know one of the cardinal rules is: "Do not reinvent the wheel."  So, before working on this reply, we[1] checked the "NY Library Trustees Handbook (2018),"[2] which has a whole section on hiring library directors.

The Handbook does not reference how "common" having a contract for a library director is, but on page 46, it does emphasize the importance of using a "hire letter" or "memorandum" or "contract" to confirm the hiring terms. 

This is wise counsel.  So, before we build on it to answer the member (and we will!), let's (briefly) talk about the difference between hire letters, memorandums,[3] and contracts.

As most readers likely know, New York is an "at will" employment state.  This means that, barring illegal[4] factors, an employer is free to terminate an employee as needed--and similarly, an employee is free to resign.  Most "hire letters" confirm "at-will" employment.[5]

An "employment contract," on the other hand, puts more bells and whistles on the relationship. It can address a range of things, including the parties' ability to terminate the relationship, and can alter (for a particular employee) the application of an employer's policies.[6]

Typical clauses in employment contracts for library directors are:

• A confirmation of the job description;
• A probationary period;
• A routine evaluation method;
• An assured period of employment (for instance, a 1-year or 5-year contract);
• Relocation costs;
• A recital of specific expectations beyond what is in the job description--for instance, if the director is being employed at the beginning of a strategic plan with expansion objectives, and part of the reason for the hire is a requirement to help keep the expansions on track;
• A benefit structure that differs from other job titles;
• A base compensation and bonus structure based on clearly articulated and quantifiable performance metrics;
• A commitment to a certain amount of budgeted funds and time out of the library for professional development;
• Tuition or professional development reimbursement;
• A consequence for early resignation;
• A list of specific reasons the contract can be terminated early by the board "for cause";
• A list of specific reasons the contract can be terminated early by the director;
• A buy-out or other provision in the event of early termination by the employer "without cause";
• A confidentiality clause;
• A clause regarding support in the event a lawsuit or legal complaint is directed at the employee[7] as a result of the employee performing their duties (similar to what protects a trustee).

Of course, the above-listed items are just examples.

So, how does a library board know when to use a contract?

There are too many factors to list, but here is a tool for assessing if a contract is the right approach to locking in employment terms between a library and director:

If your library answered "yes" to one or more of the above factors, it might be worth considering using a contract!  This is true even if no other library you know of is doing so (or if they all are).

That said, like all things that create obligations, a contract requires CAUTION.  Here are some factors to consider before a library decides to use a contract:

If the answer to any of the above questions is "no," a board should consider if additional steps need to be taken before deciding to offer a director an employment contract.  Employment contracts are like houseplants; although they largely just sit there, they need attention from time-to-time.

And that's my answer to the member's question; not based so much on what is "common", but definitely based on what might be "necessary" for a particular library.

Thanks for a great question, and good luck with your search.

BONUS CONTENT

If there are three take-aways I hope this answer conveys, they are:

1) a contract for a library director can be a positive and helpful thing for both parties;

2) before offering or requesting a contract, a board or director should know what they want, and why (and if a contract can fulfill that); and

3) never, never, NEVER use a generic contract from the internet...always have a draft contract reviewed by a lawyer[8] before it is offered.

To help emphasize these three take-aways, here are three limericks:

A pro-active library board

Over its strategy pored

"We seek a director

who has it together

Should a contract be offered?"

The board then decided "Why yes,

Our new person must fix quite the mess

So we'll set some terms

That our contract confirms

To address our points of high stress."

The right fit was finally found

A lawyer said the contract was sound

So to the future director,

A contract was sent o'er,

And now they are legally bound!

Did this trio of limericks skip the part of the process where the parties negotiate back and forth, and the contract is (hopefully) signed?  Yes.

But hey... the top 3 take-aways are in bold.  That's what's important. Please let us know if they are helpful.[9]

[1] Who is "we"?  The staff at the law office, and in this case, a call to the director of the council whose member sent in the question.

[2] Found as of June 2, 2022, at https://www.nysl.nysed.gov/libdev/trustees/handbook/index.html.

[3] The term "memorandum" is not a legal term.  If a "memorandum" of hire only confirms that the position is at will, it is at-will.  If the memorandum adds to the rights and/or obligations of the parties, it is a contract.  For this reason, I discourage use of the term "memorandum" to confirm hiring terms.

[4] Like discrimination, retaliation, and contract violation.

[5] These days, they also fulfill state legal requirements to confirm the date of hire, the rate and frequency of compensation, and the identity of the employer. For more on this, see the state's "wage theft" rules explained here: https://dol.ny.gov/system/files/documents/2022/05/p715.pdf.

[6] Most employee handbooks will have language confirming that the board can change the policy at will and nothing in the manual is to be taken as creating a contract; this is to preserve the "at will" arrangement.  Any employment contract should consider how it works with an existing or future employee handbook.

[7] Assurance of such coverage is not needed for most "Directors and Officers" (or "D&O) insurance to cover a director, but considering the extent of D&O coverage is an important annual task for the board.

[8] Who knows about both employment law and libraries.

[9] Feedback can go to info@losapllc.com.

[NOTE: for background to this short answer, please see the much longer "Ask the Lawyer" Background checks and fingerprinting for new employees, that addresses the tightrope walk/legal minefields of employee background checks.]

So, does a school district public library[1] implementing a background check for new employees have to also check their current ones?

The answer is: no; barring an over-ruling requirement (such as a term in a union contract) a library board can implement a background check policy for all hires going forward, without imposing a "retroactive check" requirement for current employees. 

However, I would never advise that approach.  Here are three reasons why:

1.  Possible discrimination

A policy to only check the backgrounds of "new" employees could have a disproportionate impact on candidates on the basis of age, or gender, or race (to name a few).  By not checking everyone, an employer risks the appearance of (or actual occurrence of) illegal discrimination.

2.  Possible liability

Employee background check policies are implemented to reduce risk.  If an employer is using employee background checks to reduce risk, there should be a very good reason for not checking all employees (such as a union contract that bars it[2]), or the employer risks a claim of negligence.

3.  Worker relations

A work environment should be a place of high trust.  By subjecting one class of employees ("new" employees) to heightened scrutiny, in addition to the possible concern mentioned above in "1," it creates an unbalanced environment for trust.  This is bad for morale.

I appreciate that background checks can come with a cost, so minimizing their frequency is helpful.  I encourage any library implementing such a policy to check with their "Directors & Officers Insurance" carrier, since sometimes, carriers offer resources to defray and even pick up the costs of the check.

Thank you for a thoughtful question.

[1] Of course, if a school district public library is in a school (not a common scenario; school district public libraries are largely autonomous and separate from school district property), and if the librarians are on the payroll of the district, then they are already being background checked and fingerprinted, per the chart here: http://www.nysed.gov/educator-integrity/who-must-be-fingerprinted-charts.  Of course, this question pre-supposes that the board is setting the hiring policy, which means the library is autonomous.

[2] Just to be clear, a contractual obligation to not conduct criminal background checks should never be in a collective bargaining agreement!  However, some reasonable restrictions on the scope of such a check would be consistent with NY law and policy.

Ooh, an ontological question!

I am not sure about the basis of the past legal input mentioned in the question, differentiating a "policy" from a "handbook," but I (mostly) agree with it.

I (mostly) agree with it because, in both state and federal labor law, the term "policy" is generally used to refer to a stand-alone set of rules governing the terms of employment.[1]  Examples of policies required by law include:

• Sexual Harassment Policy[2]
• Prevention of Airborne Disease[3]
• Whistleblower Policy[4]

In both common usage and in the law, when such policies are gathered together, they become a "Handbook."[5]  Many times, at the advice of lawyers,[6] employers then annually distribute a copy of this "Handbook," and (as in the member's question), require employees to acknowledge it.

The tricky thing is that once an employer has taken the step to pull the policies and create a "handbook" (again, with the name not being important...the important part being that there is some collection of policies, distributed to employees), the law may put additional obligations on the employer regarding the content.

For instance, Labor Law Section 203-e (6), which bars discrimination on the basis of an employee or their family member using reproductive services, states: " An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section" [emphasis added].  In other words: if the company has no handbook, there is no mandatory inclusion of the notice...but if there IS a "handbook," the notice must be part of it.

The term "handbook," used to mean a collection of employee policies, is also part of the recently passed HERO Act.[7]  It takes the same approach as Labor Law 203-e: if a handbook is handed out to employees, the required Airborne Infectious Disease Plan must be distributed with it (or at least, in the same manner as it is distributed).

Now, for the member's precise scenario: What about when a document that really is just one "personnel policy," but has different sections/rules and a section for the employee to acknowledge receipt?

Based on how the various employment laws in New York use "policy" and "handbook," I feel very comfortable saying that any document that aggregates an employer's rules on more than one topic (say, "progressive discipline," "appropriate attire" and "vacation") and is distributed to employees is--no matter what you call it--a "handbook." 

Or as I have put in this illustrative limerick:

One rule to another said: "Look,

Here's something that has me quite shook

We rules stand alone

In a "policy zone"

But together, we are a handbook!"

Thank you for a chance to do this research and to write this dubious verse about it.

[1] Of course, "policy" is also used in other ways in the employment context.  A big example: it is often used in the NY Civil Service Law, which frequently refers to the development of "policy" (meaning governmental positions).  Second, it is used in the context of different types of insurance required of employers (a workers' compensation insurance policy, a paid family leave act policy, a disability insurance policy...etc.). 

Huh.  I have never thought about it before now, but we should really develop some more refined terms for different "policies."

[2] New York Labor Law 201-g

[3] New York Labor Law 218-b, aka the "HERO Act" (for more on that, see Footnote #7.)

[4] New York Not-for-Profit Corporation Law Section 715-b requires this of every not-for-profit that has "twenty or more employees and in the prior fiscal year had annual revenue in excess of one million dollars." 

[5] Or an "Employee Manual" or a "Company Manual" or whatever the employer wants to call it.

[6] The legal bases for why this acknowledgement is advised will vary based on the Handbook/Manual's contents and the employer's industry.

[7] For more on the HERO Act, see "Ask the Lawyer" RAQ here: NY Hero Act and libraries.

When it comes to the legal considerations of employee name tags, there are quite a few "do's" and just as many "don’ts."  I'll set them out below, with the legal rationale behind the guidance.

DO pick a legible font.

Accessibility matters.  Consult an ADA guide and pick a font that is easy to read.

For this reason, employee name-tags should not be hand-written.

DON'T require employees to wear name tags without a "Name Tag Policy".

As we'll see, some of the details of name tag use can get tricky.  A well-thought-out, board-adopted policy is the best way to ensure the policy covers all the required bases and is enforceable.

DO have a good reason to adopt the policy.

A name tag policy should not stand alone; it should be part of an overall approach to patron service.

DON'T adopt a “Name Tag Policy” solely because of the request of one patron.

Of course, a patron request could kick off a board's consideration of adopting such a policy, but again, employee name tags should be part of the overall approach to library operations.

DO memorialize the reason for the policy in the board minutes.

For example: "WHEREAS the board has found that easily identifying library employees by their first name or nickname promotes a positive experience for patrons, visitors, and vendors, and enhances initiatives to promote confidentiality and security...."[1]

DON'T demand that employees put their full name on the name tag.

This has to do with safety and privacy.  Most definitely, a board can determine that name tags may be part of the patron experience, and request that employees wear a badge that includes their name.  However, unless the policy sets out a reason why a full name is needed, full disclosure should not be required.[2]  Further, if an employee wants to use a nickname,[3] to further avoid identification outside of the workplace, that option should be considered.

DO consider that the format for the name tag include an employee's pronouns

This is just a nice thing to do, but is also a good way to document a practice of honoring the identity of employees in a way that is consistent with state and federal civil rights laws.

DON'T pass such a policy without thinking about your union (if there is one)

If there's a union, before you pass such a policy, get some legal input on the contract.  And even if there isn't a union, think about the requirement from the perspective of the employee experience.

DO require volunteers to wear name tags, if employees in similar situations are so required.

This goes back to documenting the reason for the name tag policy.  If the practice is that every employee working in patron-facing areas wears a name tag, patron-facing volunteers should, too.

[1] This is just an example.  There are many other reasons that a board may base its decision on.  The point is that the reasons should be genuine, and be documented.

[2] This one pains me because I tend to be a stickler for formality; upon first meeting someone, I would rather they call me "Ms. Adams" rather than "Stephanie" (which only strangers and my mother call me, since my nickname is "Cole").  So, if there is a library out there that wants to go formal "Ms. Adams/Mr. Adams/RP Adams," that's fine, too.  The point is: full names should only be displayed if it is determined they are necessary.

[3] Nicknames are okay, but DON'T let them detract from the professionalism of the workplace.  In one sexual harassment case, the manager of a bar used the nickname "Big Daddy" on his name tag.  It was found that this (and other actions of debatable taste) were not a legal violation, but as the judge dismissed the case, he commented that the behavior was "obnoxious and puerile" (see Urban v Capital Fitness, 2010 [EDNY Nov. 23, 2010, No. CV08-3858(WDW)]).  But of course, this was found to not be a violation in a bar, not a library.  And remember, things have changed a lot since 2010.

A library needs two documents to address this issue:

1.  Its template contract or "rider"[1] for performers and presenters;[2]and

2.  Its current Safety Plan.

How does the contract/rider come into play?  One of the conditions it should list is a "behavior requirement," requiring that any person performing a service at or for the library "will abide by the library's policies, and the reasonable requests of library staff."[3]

How does the Safety Plan[4]  come into play?  This is the document that likely addresses vaccination, PPE, and other safety requirements for those visiting your library.

Now, see how the two work together: the Safety Plan is a library policy; the "behavior requirement" means visitors must follow it.

When the two documents are assessed together, if it isn't crystal-clear that the library requires proof of vaccination before performance, the Safety Plan or the contract/riders--or both--can be amended to require:

To maximize the safety of in-person events, the ABC library requires all providers of in-person events to provide current proof of vaccination against COVID-19 at least seven days prior to the event.

 The ABC library will consider remote options if a prospective performer or presenter requests such a change as a reasonable accommodation under the ADA due to a disability.

How can this be done so simply?

While there are many nuances that libraries must consider prior to flatly requiring vaccination for all employees,[5] WHEN IT COMES TO CONTRACTORS PROVIDING ONE-TIME OR PERIODIC PERFORMANCES,[6] unless there are grant requirements or other obligations specifically hemming a library in, a library can be more blunt in its requirements.

While they can be a very beloved part of a library's offerings, independent contractors have less rights than employees when it comes to a library imposing the conditions on performance. This is because, whether incorporated, or working "DBA", independent contractors are free to accept and reject the terms of any particular contract--and thus have more leverage and freedom than employees.[7]  And because of that, when it comes to requiring them to provide proof of vaccination, there are a few less legal hoops to jump through than with employees (new, or otherwise).

So, after all that, what were the questions? "What about performers or presenters we hire to come into the library, especially to work with children? Are we allowed to ask/require proof of vaccination status before signing a contract?"

The answer is: with the right policy and contract terms[8] in place: yes.

[1] A document you can attach to the performer's contract or proposal, setting the terms of the work.

[2] There are any number of forms a standard contract or "rider " for a library to engage performers and presenters can take. It can be in the form of a friendly letter that outlines the terms of the arrangement, or it can be a more formal document that sounds like it was written by a lawyer. Either option is OK, so long as it addresses the fundamental questions: what is being done, how much the person is being paid to do it, and what rules and expectations protect the library from any risks related to the performance. For comments on contracts for performers (both generally and in the COVID Times), dive back into history and review the "Ask the Lawyer" at https://www.wnylrc.org/ask-the-lawyer/raqs/125.

[3] Very standard stuff.

[4] Which at this point (August 2021) you have probably amended at least five times.

[5] See recent comments at https://www.wnylrc.org/ask-the-lawyer/raqs/231 and https://www.wnylrc.org/ask-the-lawyer/raqs/204.

[6] Because contracts with providers of more essential/routine services such as delivery, cleaning, and security are likely to be more complex, this guidance does not apply to those types of services...although of course a library can explore amending a contract with such a provider to require maximum allowable safety measures.

[7] That's the theory, anyway.

[8] A library should work with a lawyer to have a stock performance contract tailored to that library's identity, insurance coverage, and other unique factors.

Underlying all these highly specific questions is one Big Question: Can employers require vaccination? "Ask the Lawyer" addressed the Big Question on December 18, 2020, and that answer is perma-linked at: Staff COVID vaccinations.  For any reader who is new to this issue, or who needs a refresher, please read #186, because this answer uses that background to jump right into things.

And with that, let's jump right into things...

Question: Can we require new hires at a library to be vaccinated?

Answer: Only if the library's safety plan requires it, AND the job description of the specific position contains essential duties that cannot be performed without risk of transmission .[1]

Question: If so, how should we word this on the job application?

Answer: Here is one way:

"The essential duties of this position and the library's safety protocols require vaccination for COVID, therefore, an up-to-date COVID vaccination status is a requirement of this position."

Question: Are we allowed to ask for proof of vaccination?

Answer: Yes, but if you do, the library should have a written plan to maintain confidentially (this should be part of a Safety Plan).

Question: What if the new hire is not vaccinated because of religious reasons?

Answer: If being vaccinated is a "bona fide" occupational requirement of the position (which is what a library does by confirming that the essential duties of the position and the library's safety protocols require vaccination for COVID), a person who is not vaccinated will not become the new hire--regardless of medical or religious reasons.

As the question points out, this is a high-stakes game.  So, it is critical to work with the library's HR consultant or civil service liaison to update the job description so the front-facing work, or collaborative work, that require vaccination for that particular position is genuine.  If the "essential duties" of the position include numerous activities that could be done remotely, or in solitude, it may be that the job can be modified to accommodate either health or religious needs--both of which must be given maximum deference whenever the job requirements and the resources of the library make it possible.

Question: If the library requires those who are not vaccinated to get COVID tested weekly, does the library have to pay for those tests?

Answer:  I am not comfortable endorsing a Safety Plan or any type of procedure that includes a COVID testing requirement based solely on vaccination status.

Here is why:

The EEOC is currently the go-to agency for guidance on balancing privacy, disability, and employment needs when it comes to COVID.

Current EEOC guidance (posted at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) as of August 16, 2021, states [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. [Emphasis added]

Here's where the COVID daisy-chain begins: the EEOC is basing its notion of "basic necessity" on the guidance from the CDC.

Here is the "current CDC guidance" (posted at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html) as of August 16, 2021:

Who should get tested for current infection:

• People who have symptoms of COVID-19.
• Most people who have had close contact (within 6 feet for a total of 15 minutes or more over a 24-hour period) with someone with confirmed COVID-19.

-Fully vaccinated people should be tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

-People who have tested positive for COVID-19 within the past 3 months and recovered do not need to get tested following an exposure as long as they do not develop new symptoms.

• Unvaccinated people who have taken part in activities that put them at higher risk for COVID-19 because they cannot physically distance as needed to avoid exposure, such as travel, attending large social or mass gatherings, or being in crowded or poorly-ventilated indoor settings.
• People who have been asked or referred to get tested by their healthcare provider, or state, tribal, local or territorial health department.

Nowhere on this list is "unvaccinated employees who report to work as usual." [2] A dilemma, right?

Not as I see it.

As I see it, while we can all find something to complain about in the lurching, evolving guidance from the alphabet soup of EEOC, NYSDOL, OSHA, NYSDOH, WHO and CDC, this current configuration makes perfect sense.

Why? Because this approach achieves balance.  Within these confines, libraries (along with other employers) are positioned to structure job requirements to be as safe as possible--not just for employees, but for the communities they serve.  The structure and requirements, however, must be "bona fide," meaning that personal safety, privacy, freedom of association, and respect for conscience are positioned to be honored, while ensuring they do not gain primacy to the detriment of public safety as a whole.

For these reasons, I will not answer the question as posed.  However, I will answer:

Question: If the library requires employees who trip a current CDC risk factor (showing symptoms, close contact, etc.) to get COVID tested, does the library have to pay for those tests?

Answer: I have found no requirement that an employer pay for a COVID test that is used as a pre-requisite for returning to work.  Of course, for employees who are sick, or on mandatory quarantine, or have been sent home by their employer for tripping a COVID factor, the protections for paid sick leave[3] that were set up earlier in the pandemic still apply.

And I will add this bonus question:

Question: If the library decides to use routine random COVID testing of all on-site employees as part of a Safety Plan, does the library have to pay for those tests?

Answer:  An employer cannot require an employee to pay for a COVID test,[4] and cannot deduct the cost of such a test from a paycheck, so if the employer sets up random testing as part of a Safety Plan, the employer must pay for it.

[1] Bearing in mind all the caveats set forth in Staff Covid Vaccinations.

[2] I suppose an employer could categorize an unvaccinated employee as having "taken part in activities that put them at a higher risk for COVID-19" simply by reporting to work.  But would an employer want to admit to allowing such risk to take place?

[3] Found at https://coronavirus.health.ny.gov/system/files/documents/2021/01/guidanceonuseofcovid-19sickleave_0.pdf

[4] Remember, an employee who is out due to symptoms, exposure, or ordered quarantine can "wait it out" and doesn't have to take a test.

Before answering this question, I have one over-arching comment: the member who sent this inquiry was wise to submit the question when they did; it is not the type of question to be handled without the input of a pro.[1]

Why is that?  This type of situation is, of course, riddled with legal pitfalls.  ADA, FMLA, paid sick leave law, workers' comp law, OSHA, union contract (if relevant), NY Civil Rights law, personal injury law, employee manual compliance...the list of legal considerations is lengthy.

But just as, if not more critical--and often buried in all the legal--is the fact that a place that "fires" a worker after they were injured in the line of duty risks seeming...heartless.  Mean.  Cruel...or at least, unfeeling.

Fortunately, focusing on the human sides of this type of issue (how is the employee doing?  Are they getting everything they need from the library's comp carrier?  Might their doctor clear them for light duty? How has the injury impacted their family? How are co-workers handling the loss of their co-worker's contributions?) will actually build the best framework for taking care of all the details that are "legal."

How can that happen?  With the pro helping them do things like: drafting a leave letter, developing an interim staffing plan, and planning for the employee's return to work, the Board has time to focus on the human factors.

So, how long can a library hold open a job while an employee is out on disability due to a work-related injury?  There are too many factors to give a numerical answer.  This is one where a library, museum, archive, historical society, etc. should seek a professional[2] to get a custom response--enabling leadership to focus their energies on concern for the employee, the workforce, the community, and the library.

[1] The "pro" I refer to does not have to be an attorney.  They can be an experienced HR professional or administrator. 

[2] This is one where your System or your regional council's "Ask the HR Expert" service can be an invaluable resource.

[NOTE: This answer is part of our ongoing response to institutions moving to online instruction as part of the world’s response to COVID-19.  For additional Q&A on that, search “COVID-19” in the Ask the Lawyer search utility.]

“Teachers Pay Teachers” (“TPT”) is an interesting service that allows teachers to license (sell rights to) others who need customized lesson plans and educational material.[1]

The member’s question relates to the TPT license, which governs what individuals and organizations can do with the content.

If the member’s question is asking: does the TPT license allow us to print and distribute the materials in hard copy for packets sent out by the District?  The answer is generally: yes.

If the member’s question is asking: does the TPT license allow us to distribute the materials electronically using e-mail or a website or a Learning Management System? The answer is generally: it depends.

I spent some time on TPT’s website reviewing their “Terms of Service”[2] and I believe teachers and organizations will need to examine the license for each separate purchase to confirm that electronic distribution is allowed.

Why? TPT’s “Terms of Service” largely allow for the creation of hard copies,[3] but their default conditions bar online distribution.  HOWEVER, TPT also allows the teachers supplying the content to loosen those default restrictions[4] (including allowing distribution on the web[5], e-mail, etc.)…so while one lesson purchased from TPT might not allow a web or e-mail distribution, another might. 

This can change not only from author to author, but content to content, so it is important to read the fine print.[6]

I would add: these are early days in the pandemic response.  As of March 26, 2020, TPT did not have any expressly Covid-19 policies on its website.  Nevertheless, like other online and tech providers, they may realize their hour has come, and take action. 

What will that action be?  I can’t say; a crisis brings out the best and the worst in businesses.  Some businesses will try and simply profit from the current situation; others will dig deep, conclude we are all in this together….and try to find at least middle ground. 

Looking at their Terms, Teachers Pay Teachers has made commitments to individual content providers it cannot easily change on a dime.  But remember, TPT empowers its individual content providers to set their own terms—so long as those terms are more liberal that the TPT baseline.  So keep your eyes on those product-specific, unique terms of use.  I imagine many teachers will feel compassion for the teachers and students impacts by this public health emergency, and liberalize their restrictions.

Thank you for this important question.

USING LICENSED CONTENT TIP: If you or your institution conclude that TPT or another license does give you permission for electronic distribution, it is a good idea to take a screen shot of that license and save it (just e-mail it to yourself in a place where you know you’ll have it for 3 years after you’re done use the content).  Online content providers can change the terms they post, without warning—and you want to be able to show that on the day you made the call to share the content electronically, the licensor allowed you to do so.

[1] Because some educational institutions own the rights to teacher-generated materials, and some do not, the Teachers Pay Teachers model is a fascinating study in copyright issues—but a global pandemic is not the time to muse over that.

[2] As of March 26^th, 2020: https://www.teacherspayteachers.com/Terms-of-Service

[3] The Terms of Service allow you to: “Print and make copies of downloadable Resources as necessary for Personal Use. Copies may be made and provided to your students, classroom aides, and substitute teachers as necessary. Copies may also be made for students’ parents, classroom observers, supervisors, or school administrators for review purposes only. Hard goods and video resources may not be copied, shared, or otherwise reproduced.” [emphasis added]

[4] But not further tighten them.  Like I said, a really interesting model.

[5] For instance, one license I looked at, for a chemistry class, said: “These resources may not be uploaded to the internet in any form (including classroom websites, personal web sites, Weebly sites, network sites) unless the site is password protected and can only be accessed by the students of the licensed teacher.”  In other words: yes, you can distribute them electronically, if you use a restricted system!

[6] The diversity of author-specific permissions I saw on TPT was really interesting. Some folks just want credit.  Others want you to not send the content, but drive people to their own personal listings (so their analytics show the hits).  I bet some, in the coming days, will even change their permissions to respond to the pandemic with compassion.