Our online column Letters of the Law explores the wide range of legal issues that arise in libraries, with the help of a pair of leading authorities: Mary Minow, a librarian who became a lawyer, and Tomas A. Lipinski, a lawyer who became a librarian. Together they have authored four books on the subject, including The Library’s Legal Answer Book (ALA Editions, 2003, with a new edition forthcoming in 2021), and led forums at American Library Association (ALA) conferences in collaboration with the Public Library Association (PLA).
In this edition, Minow addresses legal issues that have arisen around the COVID-19 pandemic, including exceptions to face-mask requirements and force majeure clauses in contracts, as well as the legality of taking time off to vote.
If a library has a policy requiring users to wear face masks, how do patrons with disabilities that directly conflict with mask-wearing use the library?
As libraries navigate the complicated process of reopening while providing a safe environment within the confines of the law, they would do well to read Theresa Chmara’s recommended guidelines, approved by ALA’s Intellectual Freedom Committee, for common questions and concerns. (Chmara is general counsel of the Freedom to Read Foundation.)
First, know that there are fake exemption cards circulating on social media, some bearing the seal of the US Department of Justice (DOJ), claiming the holder has a disability that prevents them from wearing a mask. The cards say it’s illegal for any business to ask bearers to disclose their condition. These cards are not issued or endorsed by DOJ. Read more about the phenomenon here.
The Centers for Disease Control and Prevention (CDC) states that a person who has trouble breathing or is unconscious, incapacitated, or otherwise unable to remove the face mask without assistance should not wear a face mask or cloth face covering. Other examples may include individuals with respiratory conditions such as asthma, chronic obstructive pulmonary disease, or cystic fibrosis. Additionally, people with post-traumatic stress disorder, severe anxiety, claustrophobia, autism, or cerebral palsy may have difficulty wearing a face mask.
The Americans with Disabilities Act (ADA) does not specifically address face masks, but the Atlanta-based Southeast ADA Center and Burton Blatt Institute at Syracuse University offer a useful fact sheet on the topic. Under the ADA, a library must consider reasonable modifications—changing policies, practices, or procedures—for individuals with disabilities so they can participate in or benefit from library programs and services.
Reasonable modifications to mask requirements may include:
- allowing a person to wear a scarf, loose face covering, or full-face shield
- allowing curbside pickup or no-contact delivery in a timely manner
- offering phone or video appointments
There are three reasons a state or local government agency or private library may not have to provide a reasonable modification under the ADA:
- Fundamental alteration. A library may not have to provide a reasonable modification if the modification would change the nature of the service, program, activity, goods, services, or facilities. A fundamental alteration is a change to such a degree that the original program, service, or activity is no longer the same. An example would be a request for home delivery when the library does not already offer that service.
- Undue burden, such as a significant difficulty or expense. This could include a request to visit the library before or after its regular hours, as it would place an undue burden on limited staff.
- Direct threat, or a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. If an individual with a disability poses a direct threat despite reasonable accommodation, they are not protected by the ADA.
In order to limit a direct threat around COVID-19, state and local government agencies and businesses may:
- develop policies and procedures to promptly identify and isolate patrons with symptoms of COVID-19
- offer face masks to patrons (public libraries should include a free option)
- inform library users about symptoms of COVID-19
- limit in-person access to buildings as appropriate
For guidance on the decision-making process for reasonable accommodations, see discussion of two DOJ settlement agreements (one involving a YMCA, one involving the District of Columbia) from the Southeast ADA Center. For more on reasonable accommodation for employees, along with other pandemic-related employment issues, consult the Equal Employment Opportunity Commission’s guidance.
With everything going on in the world, why should I bother looking at provisions in old contracts the library has signed in the past?
A boilerplate clause in most types of library contracts known as force majeure (French for “superior force”) has suddenly become important amid the COVID-19 pandemic. Sometimes known as “acts of God” clauses, they refer to natural catastrophes and can allow one or both parties to get out of or change its obligations.
The clauses are not uniform, and whether they apply to the library or vendor and what they affect (payment, timing, nonperformance) depends entirely on their wording. I recommend looking at your library’s most important contracts now rather than later because invoking force majeure generally requires timely notice.
Sample force majeure clauses and checklists abound (here’s one good example). Especially useful with respect to electronic licenses are the samples given at the Liblicense project hosted by the Center for Research Libraries. Liblicense, a rich resource for libraries negotiating vendor contracts for many years, evaluates two sample force majeure clauses from a library’s point of view, primarily making the point that libraries should ensure that the clause applies equally to the library as well as the vendor.
A court in Illinois recently excused a restaurant from paying 75% of its rent because the governor had ordered the restaurant to shut down most of its operations. A typical force majeure clause says that it does not excuse an obligation to pay money, but this particular one did not carve out monetary obligations. Forbes reports that although probably only a minority of clauses may allow a party to reduce rent, this shows how important it is to closely read even boilerplate language.
A common reason people give for not voting is that they’re too busy with work demands. May (or must) libraries give employees time off to vote?
Illinois passed a law in June that expands early voting and vote by mail and also makes November 3, 2020, a legal holiday for public schools and state and local government offices. But what about other dates and other libraries?
The federal government has a longstanding policy of granting federal library employees a limited amount of administrative leave to vote in elections (read more here). And most state and local governments require employers to allow employees time off to vote, particularly when their working hours do not permit sufficient time to do so.
State laws vary widely in their details. Workplace Fairness and XpertHR offer state-by-state guides. Read your state law with an eye to see if it requires paid time, whether it requires notice by employees, whether employers may designate the hours off, and whether the employer can demand written proof of voting or penalize employees who take time off to vote.
Private library employers may set their own policies. Time to Vote is a current movement in the corporate world to encourage paid time off.
Even in states with no voting leave law, it is good practice to encourage voting by giving up-to-date information about early and absentee voting options.
The information in this column does not constitute legal advice, nor does it necessarily reflect the views of ALA or PLA. It is meant to serve as a starting point for librarians and library lawyers who wish to research the law and consider its applications. Different jurisdictions will have different laws and may even apply the same laws differently. If you require legal advice or expert assistance, we urge you to seek the services of a competent legal professional.
Look for a new column by Lipinski this fall. Send questions or ideas to Associate Editor Sallyann Price at email@example.com.