by Theresa Chmara, J.D.
As public libraries make plans to phase in reopening during the Covid-19 pandemic, they must consider how best to balance the safety of staff and patrons with the mission of providing the community with access to the resources traditionally offered by the library. In drafting plans to phase in reopening and policies to govern use of the library during these unprecedented times, public libraries should take the following steps:
- Consult with legal counsel regarding both reopening plans and policies to govern staff and patron access to and use of the facility.
- Review federal, state and local laws that may impact plans and policies, including but not limited to relevant Executive Orders, State Privacy and Confidentiality laws and local municipal directives regarding access to public buildings. Check for frequent updates as policies may need to be adjusted in response to new information about Covid-19 and its spread.
- Review agency guidelines, including but not limited to local health offices, Centers for Disease Control (CDC) guidance on maintaining sanitary conditions and safe spaces, Equal Employment Opportunity Commission (EEOC) guidance on employment issues and the Occupational Safety and Health Administration (OSHA) guidance on protecting employees in workplaces. Check for frequent updates as policies may need to be adjusted in response to new information about Covid-19 and its spread.
- Consult the American Library Association Bill of Rights and Policy Guidelines for specific guidance on how to balance the interests of safety for staff and patrons with the need to maintain the privacy rights of employees and community members utilizing the library and its resources.
- Be certain that all policies are reasonable and necessary for the safety of staff and members of the community.
- Document why certain policies are deemed reasonable and necessary.
- Draft policies that can be applied objectively by staff and provide staff training on how to enforce the policies.
- Enforce policies consistently.
- To the extent that policies deny access to the facility or library resources, provide an appeal procedure for review of the denial.
Frequently Asked Questions
1. Can policies concerning patron access be based on protecting staff health and wellness?
As an employer, a public library has an obligation to protect the health and safety of its staff. OSHA provides general guidance and recommendations on how to protect workers during the Covid-19 crisis. Courts have held that patrons have a First Amendment right to access the library because the right to receive information is a corollary to the right to speak. However, the library also has the right to establish reasonable rules governing library use. Maintaining a safe environment for staff and patrons would be considered reasonable and necessary. For example, one court upheld the right of a public library to require that patrons wear shoes because the library could document through incident reports that the floors sometimes contained glass and other dangerous materials that could pose a health and safety risk. See Neinast v. Board of Trustees, 190 F.2d 1040 (S.D. Ohio 2002), aff’d, 346 F.3d 585 (6th Cir. 2003). In drafting any policy that would restrict access to patrons, the public library must consider whether it can justify the rule as reasonable and necessary for that particular library. What will be considered reasonable and necessary in one library may not be considered reasonable or necessary for another library. Public libraries should also note that content neutral and reasonable time, place and manner restrictions may be imposed for the purpose of maintaining a safe environment. Thus, for example, a public library could impose a requirement that only a limited number of patrons can access the library at any one time and that patrons can only be in the library for a set period of time to maintain safety. As always, those rules must be enforced consistently. Look to guidance from local health officials and the CDC to determine how to set reasonable time, place and manner restrictions.
2. Can public libraries require temperature or health status checks before staff or patrons enter the building?
Although temperature and other health status checks generally would be considered medical tests and thus be impermissible in an employment situation, the EEOC has issued guidance that allows such tests during the Covid-19 pandemic. As most libraries will not be considered covered entities under the Health Insurance Portability and Accountability Act (HIPAA), libraries should also consult the AMA Privacy Principles if they are required to do temperature checks or otherwise determine that such a requirement is necessary. Although the EEOC guidance does permit employers to retain temperature check and other medical information in files that are separate from employee personnel files, libraries should consider whether there is a legal requirement in their jurisdiction to retain such information or there is a need for such information to be retained before implementing a policy of retention. As a best practice, libraries should only retain documents with personally identifiable information when required by law or otherwise necessary to allow the library to manage the use of library services and resources. If libraries retain such information, it is critical that any medical information from temperature or other health status checks must be kept confidential. In order to comply with employment laws, public libraries should conduct any temperature and other health status checks on staff in a private manner. There is no clear guidance at this time regarding health status checks of patrons. In considering whether to require such checks, the library should consult federal, state and local laws, as well as local health official and CDC guidance on whether to institute such procedures. There may be a law in place that permits such checks. Guidance from the CDC or local health officials might encourage such practices for all public buildings. In that case, a library might be able to justify such an imposition on access as reasonable and necessary to maintain the safety of staff and patrons. Before instituting procedures to check temperatures or otherwise collect medical information, libraries should consider the use of medical personnel to conduct such procedures and should determine whether any state or local law requires use of medical personnel for such procedures.
3. Can public libraries require staff or patrons to wear masks if they wish to enter the building?
In each particular setting and physical space, the public library must consider whether a mask requirement is reasonable and necessary to maintain safety. The CDC recommends the use of facial masks where other procedures, such as social distancing or partitioning of spaces is not feasible. In considering whether to require staff and patrons to wear masks, the library should consult federal, state and local laws, as well as guidance from local health officials and the CDC on whether to institute such a requirement. There may be a state or local law in place that requires masks. Guidance from local health officials or the CDC might encourage use of masks for all public buildings once a community has moved to a reopening phase. In that case, a library might be able to justify a mask requirement as reasonable and necessary to maintain the safety of staff and patrons. In some jurisdictions, employers who require masks must supply the masks for their employees. If there is an executive order or other legal requirement that staff and patrons wear masks in a particular state or local community, review the order carefully to determine if there is an exception for those who have a medical condition that precludes wearing a mask and consider alternatives to address safety concerns.
4. Can public libraries require patrons to leave the building because they are exhibiting Covid-19 symptoms?
Asking a patron to leave based on a suspicion that the patron has Covid-19 may be difficult. Courts have held that patrons have a First Amendment right to access the library because the right to receive information is a corollary to the right to speak. Courts have also held that the library has the right to establish reasonable rules governing library use. Maintaining a safe environment for staff and patrons would be considered reasonable and necessary. Therefore, it would appear to be reasonable and necessary to have policies in place that allow staff to ask a patron to leave if that patron poses a risk to the health and safety of staff and other patrons. The difficulty will lie in enforcement of such a policy. Although the CDC has set forth some typical symptoms for Covid-19, many of those symptoms could just as easily be attributable to other conditions. For example, a person that is coughing or sneezing could have allergies. In considering whether to have a policy that permits staff to ask a patron to leave based on the patron having possible symptoms of Covid-19, the library should consult federal, state and local laws, as well as CDC guidance on whether to permit such a practice. If such a policy exists, the library should have an appeal process that allows the patron to appeal the decision of a staff member. If such a policy exists, libraries must conduct extensive training for staff to assure that the policy is carried out consistently. If the policy allows a staff member to ask a patron to leave because the patron exhibits certain symptoms, then any patron exhibiting such symptoms must be asked to leave. There can be no exceptions. Given the difficulty in enforcing requests to leave based on symptoms, public libraries might consider alternative methods of limiting exposure of staff and other patrons to patrons with possible symptoms. For example, a public library could impose time, place and manner restrictions that apply to all patrons and limit access to the library for a set amount of time, thus allowing staff to ask a patron to leave based on objective time limits, rather than the subjective judgment of symptoms. This would limit the amount of time that any one patron is in the library and potentially spreading the virus. If a policy exists that allows staff to ask members to leave and a patron refuses, the staff should follow established policies and procedures for how to respond as they would for violations of any patron behavior policy.
5. Can public libraries be required to use sign-in logs for access to the library that collect personally identifiable information of patrons for release to other agencies for contact tracing?
If a public library is required to use a sign-in log or otherwise concludes that such a log is necessary in the context of their particular library, the library must be cautious in how it collects such information and how that information will be retained, used or shared. Public libraries collect personally identifiable information from patrons in many instances. A public library may have an Internet sign-up list, a meeting room request form or other logs that collect the personally identifiable information of patrons. In fact, collecting such information in the form of a sign-in log for library access during the phased in reopening might be reasonable and necessary if, for example, the library has a policy during reopening that only allows a limited number of patrons into the library for a limited amount of time. Tracking who has entered the library and whether they have departed according to the time limitation policy might be necessary to ensure that other patrons have access to library resources in a fair and reasonable manner, and that the greatest number of members in the community can access library resources. Alternatively, the library could avoid using a sign-on log for this purpose if it utilized a procedure where a set number of patrons entered the library at a certain time and for a set amount of time and all had to exit the library at the same time. This type of time, place and manner procedure would eliminate the need to track who has entered the library. The library would only need to track the number of people in the library during a specific time period. As a best practice, libraries should limit the collection of personally identifiable information in all circumstances unless required by law or otherwise necessary to permit the library to carry out the functions of managing library services. If a library has a sign-in requirement, it must include procedures to maintain the privacy and confidentiality of that information. For example, the information should be gathered in a confidential manner and the sign-in log should not be displayed publicly in a manner that would allow other patrons, members of the public or other government agents to see the information. The information from sign-in logs should be retained only for as long as required by law or necessary for the library to manage access to library services. If the library is required to retain such information, the information must be secured in a confidential manner. If a request is made for such information by another government agency or member of the public, the library should consult legal counsel immediately. State privacy and confidentially laws often prohibit libraries from providing personally identifiable patron information to third parties, including to other government agencies, without a subpoena or court order. Public libraries who receive a request for such patron information should consult with legal counsel before disseminating any patron information to third parties, including other government agencies.
6. Can a public library terminate an employee that refuses to return to work in the physical space of the library?
The EEOC provides guidance on whether an employer can terminate an employee for refusing to return to work. This EEOC guidance also provides important information about other employment related issues surrounding Covid-19, including guidance for employers that might be required to make reasonable accommodations for staff in high risk categories who are unable to return to the physical workplace.
These materials are not a legal opinion nor should they be regarded as legal advice. Readers should consult their own legal counsel for legal advice regarding their particular situation.
These guidelines were authored by Theresa Chmara and approved by the Intellectual Freedom Committee on June 8, 2020.
Theresa Chmara is an attorney in Washington, DC. She also is the General Counsel of the Freedom to Read Foundation. She is the author of Privacy and Confidentiality Issues: A Guide for Libraries and their Lawyers (ALA 2009). She has been a First Amendment lawyer for over twenty-five years and is a frequent speaker on intellectual freedom issues in libraries. She is a contributing author for the Intellectual Freedom Manual published by the Office of Intellectual Freedom of the American Library Association.