Posted by: bluesyemre | May 7, 2021

Can #Libraries require staff and patrons to show proof of Vaccination?

As the proverbial light at the end of the pandemic tunnel comes into view, so does the discussion around whether a library can require its staff or patrons to have a vaccination in order to enter the building. I’ve spent a good deal of time pondering this question, and while I’m not an attorney and not offering legal advice, there are several things to consider, about this and other related issues.

There are already examples (current and past) where certain environments require vaccines as a condition of employment, typically in healthcare-related industries. The Society of Human Resource Management (SHRM) has been abuzz on this topic for months, with webinars and attorneys standing ready to cautiously offer advice that typically falls shy of a firm course of action.

Recently the Equal Employment Opportunity Commission (EEOC) confirmed that employers can require their employees to receive a COVID-19 vaccination as a condition of employment. This decision applies nationwide, and is based on the premise that COVID represents a “direct threat” to others in the workplace.

Nonetheless, just because we are allowed to doesn’t mean we necessarily should. Mandating vaccinations could have implications for persons with health conditions, thereby invoking requests for accommodations under the Americans with Disabilities Act (ADA). Likewise, if a person became ill or died as a result of receiving a vaccine, there could be a disability or death claim under the employer’s Workers Compensation program. And when employers contemplate the possibility of a mandate, they often consider how one group of employees might be mandated while others remain optional due to one group’s susceptibility to disease over another’s. It’s important to note that the Office of Civil Rights has made it clear that nondiscrimination rules remain in force during disasters and emergencies.

Let’s consider some of the issues:

COVID as a “direct threat.” Because COVID is recognized as a “direct threat” to employees and customers, an employee’s request not to be vaccinated as reasonable accommodation under the ADA might be achieved by permitting them to work remotely, take a leave of absence, or work while wearing a mask. Eventually the Centers for Disease Control (CDC) may declare that those who are vaccinated can stop wearing masks, but recommend that those who are not vaccinated continue to wear them. By continuing to wear a mask when not vaccinated, they remain relatively safe and are able to continue working as the majority of the population worked with a mask this past year.

An employer can exert control over behavior in the workplace through established policies and procedures, provided they do not contradict employment laws. Similar restrictions might be required, advised, or simply recommended for members of the public. Customer behavior is a little more difficult to control, however, which is why businesses and libraries look to laws and community rules to guide behavior of those visiting their facility. Here at Kent District Library, the response to initial mandated closings involved providing remote work (mostly training) when the pandemic began. Over time, we have modified staffing strategies to create greater space between workers and, in limited circumstances, have been able to accommodate a few ongoing remote work requests. It should be noted though that, like most libraries, our ability to accommodate requests for remote work is directly related to the type of work the individual performs and the number of people making a similar request. Some employers have had employees who request a medical exemption to wearing masks, and those are often denied. Conversely, if a patron claims “medical exemption” upon entering the building, KDL accepts their explanation.

Religious beliefs. Some speculate that individuals will make requests for accommodations citing genuinely held religious beliefs and there may need to be creative ways to accommodate these individuals (or not). These could include transferring an employee to a location where they are the only person in the room and can work without wearing a mask, allowing them to conduct phone reference from home, or come in after hours and perform shelving tasks by themselves. If remote work is not available (and it is not for many public-facing positions), I would anticipate that the employee would have to make a difficult decision between honoring the safety requirements put in place by their employer or resigning.

Union bargaining. Present thinking is that if a vaccine is a requirement of employment, this may need to be bargained with the union because it represents a condition of employment and the union may wish to see such conditions addressed in the labor agreement. I anticipate labor negotiations throughout the world will have an emerging focus on outlining pandemic clauses that address such things as remote work, compensation during emergency closings, and new layoff language. In fact, I’m aware of an employer whose employees actually were demanding to bargain with management because they wanted to be laid off rather than be at home with simple salary continuation. Being laid off meant some of them would make more money from the government’s supplemental unemployment stipends (since discontinued) than they do in a normal work week. When topics of government stimulus are raised there is a tendency for team members to offer their political views on the subject, but that only serves to contribute to an already challenging and divisive political climate. Rather than focus on the political side of such decisions, I recommend instead focusing on the economics, so that you can implement decisions that make sense to your library and avoid political fallout.

Discrimination. There is caution against mandating masks or vaccines only for high-risk people. Some employers have speculated that, perhaps, it will be important to require masks of older employees since COVID presents a greater threat to life for older populations. However, treating a population of employees differently than the rest can result in claims of age discrimination.

Health care expenses. Many employers will require the vaccine as a means to proactively manage healthcare costs (especially when the average stay in an intensive care unit is around $4,000 per day). Just as one’s personal insurance company might insist on certain precautions being in place so that an individual is eligible for coverage, who is to say employers won’t require a vaccine as a measure of cost-protection against future healthcare expenses? I’m aware of another employer who recently informed their staff, “You’re welcome to not get the vaccine, but if you get COVID, you may not utilize paid sick time.” That may sound like an infringement on a person’s rights, but businesses and libraries need to ensure their future viability and one way to reduce the likelihood of severe illness (and related hospitalization costs) is to prevent people from becoming ill in the first place, which is fundamental to every wellness initiative since employee wellness efforts began.

Where does that leave us? I believe we would be hard pressed to find a legal advisor who would offer clear advice on what to do, as they wouldn’t want their client named in the first legal challenge. While libraries like to be forward-thinking, this might be a time to wisely sit back and let the government work through the details. As it is, several employment laws seem to intersect, government agencies seem to contradict one another at times, and it feels like everyone’s working through this slowly and steadily, waiting for that next piece of advice or confirmation from a larger authority. Most of the leaders I speak with are wisely taking a calculated approach, and that makes sense. We’re all learning as we go.

A COVID takeaway. One of my humbling moments in all of this has been the realization that some decisions are bigger than me—despite feeling like I have the means and ability to make them. Sometimes being a leader means knowing when to follow. We’ve learned quickly that our library leadership, administrators, and trustees have needed to follow directives from local health departments, the Occupational Safety and Health Administration (OSHA), the CDC, and our governmental leaders. “Control what you can, based upon what you know now. Also, listen to staff concerns and anticipate what decisions you may need to consider next.”


Brian L. Mortimore is Director of Human Resources and Organizational Development at Kent District Library and head of Mortimore Consulting, LLC in Grand Rapids Michigan.

https://www.libraryjournal.com/?detailStory=Can-Libraries-require-staff-and-patrons-to-show-proof-of-vaccination


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