New state law changes provisions related to employing minors

There are a number of benefits to having teenagers in the workforce, a couple of which are that it tends be cheaper for the employer than hiring adults, and it gives the teenagers some work experience and connections that could be valuable later in life. However, it is important to balance the needs of employers with the needs of the teenagers, who may still be in school. There are both federal and state laws in place that provide some basic guidelines for employers when it comes to teen employees.

Image Credit: Child Labor Laws by Nick Youngson CC BY-SA 3.0 Alpha Stock Images

Image Credit: Child Labor Laws by Nick Youngson CC BY-SA 3.0 Alpha Stock Images.

The federal Fair Labor Standards Act sets wage minimums, work hours and safety requirements for workers under the age of 18 who are working in jobs that are covered by the law. For information on the Fair Labor Standards Act as it applies to minors, click here.

IC 20-33-3 is the chapter of Indiana state law that traditionally covered employer limits on employing students. However, the part of the law where you will find these limitations has moved from Title 20 (Education) to Title 22 (Labor and Safety).

In the 2020 legislative session, the Indiana General Assembly made a number of changes to Indiana’s laws related to employing students, only one of which was moving the teen labor laws to a different part of the code. A few of the additional changes are as follows:

The Bureau of Child Labor is now called the Bureau of Youth Employment. Work permits are no longer required for students who are not Indiana residents, or for home schooled students, or students enrolled in a career and technical education program. However, working hour restrictions still apply. Break requirements have been eliminated. Working hour restrictions for 16 and 17-year-old students are the same now. Work permit termination notices are no longer required to be sent to the school upon worker termination. Minors less than 16 years old may not work during school hours. Employers who employ at least five minors age 14 to 17 must register with the Indiana Department of Labor and a minor may not work in an establishment that is open to the public after 10 p.m. or before 6 a.m., unless another employee who is at least 18 years of age also works with the minor.

The Indiana Department of Labor has a summary  document available that describes some of the additional changes. To read about all the changes, review SEA 409 in its entirety.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Considerations for reopening if the library board or staff still have concerns

Once the current COVID-19 public health emergency is over and the executive orders limiting movement have expired, some library board members or staff could still have concerns. It is imperative that if additional restrictions remain in place, the library enforce those restrictions universally. Some of the things a library could continue to do to encourage social distancing for the public without risk of legal recourse are as follows:

1. Rearrange or remove some of the seating to limit how many people are congregating in the seating areas and to keep the tables spread a good distance apart from each other. This might draw some criticism from taxpayers but would not be discriminatory if seating was first come first serve.

2. Meeting room reservations by the general public could technically continue to be temporarily or even permanently discontinued. Neither the law nor public library standards require libraries to provide meeting rooms. Again, this is a move that might draw criticism but wouldn’t be discriminatory if no one has access except the library staff or board.

3. Libraries could continue to request patrons stand six feet apart at the check out and reference desks by marking the floors with tape – or something else – and posting signs, similar to what retail stores are doing. Requiring everyone to do that is not discriminatory. Family members and small groups that come in together should not be required to be separated from each other.

4. Libraries can use plastic sneeze shields at the check out and reference desks to protect staff from patrons similar to what the retail stores are doing. This seems impersonal but would be a non-discriminatory safety measure.

5. Libraries could rearrange their computer areas to provide some distance between each terminal. However, if rearranging isn’t practical, they could have only every other computer terminal operational to force some distance between the users and perhaps limit the amount of time each user may be on the computer. Computer users can put their name back on the waiting list to have another turn if they don’t complete what they need to do on the computer the first time. The library could sanitize the terminals between users.

6. Libraries could limit story time and other programs to X number of people, first come first serve and make sure they are holding the programs in a large enough space that individuals are not on top of each other, and so on. Maybe those turned away because the program filled up could get to be first on the list for the next program. Or, maybe the program is repeated multiple times so everyone can have a chance to attend since smaller groups will be allowed to attend each time. Don’t pass around objects to be touched by multiple people at story time  or programs; continue to keep puzzles and games put away out of reach or require that they be checked out and checked in even while using on the premises so they can be sanitized between users, etc. Capacity limits for story time or other programs should be stated on the program description. For example: “This program is limited to X number of attendees and is first come first serve” or “Attendees may register via X or Y.”

7. Libraries could still post a sign at the library entrance and have a policy requesting that those with communicable illnesses refrain from entering the library. However, trying to kick patrons out if they are coughing or have a runny nose could be problematic for multiple reasons. Library staff don’t know if the patrons might have allergies, asthma, lung disease, cancer, etc. Additionally, with COVID-19 and other communicable illnesses, sometimes the person is contagious before they even show symptoms and sometimes a person may still be coughing after they are no longer contagious.

8. It is possible for libraries to set a lower maximum capacity threshold for their buildings that will allow for six feet between every person in the library to try to prevent against overcrowding but this could be difficult to enforce unless the library stations someone at the door to do head counts of everyone coming in and out. This would obviously draw criticism if people are forced to wait to come in until others have come out but would not be discriminatory if enforced consistently. Libraries will want a policy in place for this and should expect to have to address complaints. This will likely not be a popular move.

Wherever the general public gathers, whether retail or grocery stores, the mall, restaurants, the Bureau of Motor Vehicles or the public library, there will always be some risk of being around others with communicable illnesses. However, as stated above, there are measures that can be taken to help reduce the risk of spread of such illnesses and make public places safer for all.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Novel coronavirus COVID-19 resources for libraries

The following blog post is intended to provide general information and should not be construed as legal advice.The author relied on federal law and Indiana law, but did not research any other jurisdictions. Due to the rapid changes of this evolving public health emergency, the most appropriate information and recommendations will likely change daily. The information below is up-to-date as of March 18.

Libraries throughout Indiana are now embracing the dual challenge of meeting community needs while protecting the safety of staff and patrons during the current outbreak of the novel coronavirus, known as COVID-19, as well as other pandemic diseases in the future. Symptoms of COVID-19 include fever, cough and difficulty breathing.

The COVID-19 outbreak provides an opportunity for local public libraries to educate the public using reliable and accurate sources for medical and public health information. See the National Network of Libraries of Medicine’s webpage A Guide to COVID-19 (coronavirus disease 2019) for Public Libraries for a list of resources. The geographic spread of the virus also creates an opening to reinforce libraries’ traditional values of inclusion and non-discrimination.

Libraries are asking about their obligations to staff and patrons during a pandemic. The Indiana State Department of Health advises public facilities to take “every day preventive measures” to help contain the spread of COVID-19. These include:

  • Ensuring adequate hand washing facilities and supplies are available.
  • Posting signs encouraging proper hand washing and respiratory etiquette.
  • Encouraging sick employees to stay home.
  • Encouraging patrons not to enter the building if they are sick.
  • Performing routine environmental cleaning (cleaning all frequently touched surfaces in the workplace).

See the health department’s COVID-19 Information for Public Facilities and Organizations information sheet for more details.

The Centers for Disease Control and Prevention also recommends that employers create an infectious disease outbreak plan in order to be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. See CDC’s Interim Guidance for Businesses and Employers for more information.

The U.S. Department of Labor suggests employers review their leave policies and consider providing increased flexibility to employees and families. Because flexible policies can open the door to discriminatory practices, DOL reminds employers they must administer flexible leave policies in a manner that doesn’t discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability or veteran status. Read more here: Pandemic Flu and the Family and Medical Leave Act: Questions and Answers.

Some of the measures that libraries are already taking include:

  • Increasing the frequency of sanitizing public computer keyboards.
  • Cleaning public contact surfaces twice per day.
  • Making hand sanitizer available in numerous locations (e.g., public computers, circulation desk and staff area) with signs encouraging use and encouraging patrons to use hand sanitizer both before and after using the computer.
  • Encouraging staff to wash hands frequently and thoroughly.
  • Cancelling programs; either some or all for a temporary period.
  • Removing toys or other touch-heavy objects from children’s areas.
  • Curbing outreach to at-risk populations, such as retirement communities.
  • Temporarily suspending requirement of a doctor’s note for an extended staff absence.
  • Closing temporarily, reducing services or changing the services provided.

The following resources provide additional suggestions and information:

Indiana Library Federation: About COVID-19 and ILF Response
Every Library: Resources for Libraries on Coronavirus
Library Journal: What Public Libraries Need to Know about the Coronavirus
National Libraries of Medicine: Coronavirus: Library and Business Operations Planning
OSHA: Guidance on Preparing Workplaces for an Influenza Pandemic (Steps Employers Can Take)

Libraries do not need to start from scratch in designing new policies and procedures to address COVID-19 or other pandemic diseases. We urge you consult your library’s attorney before proposing changes or additions to your library’s policies, but the following resources can serve as templates to help you get started:

As we move through this ever-changing public health crisis, it is reassuring to discover so many organizations sharing freely of their time and resources to help us all figure out what we need to be doing.

Written by Cheri Harris, certification program director/legal consultant at the Indiana State Library

Changes coming to overtime eligibility requirements under the Fair Labor Standards Act

This blog article should be considered general information and should not be construed as legal advice. The article reflects the Department of Labor rules on the Fair Labor Standards Act at the time the article was written but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained above but rather should act on the advice of his/her own legal counsel or other appropriate professional.

What is the Fair Labor Standards Act?
The FLSA is the set of federal laws that establish minimum wage, overtime pay requirements, employment record keeping, child labor standards and break time requirements for breastfeeding mothers. Please be mindful that there are also state laws in Indiana that cover some of these topics, so it’s important to review both when trying to determine what the law requires.

In general, the FLSA currently provides that nonexempt employees must be paid for all hours worked at a rate of at least $7.25 per hour. The FLSA also provides that nonexempt employees must be paid overtime pay at a rate of 1 ½ times their regular rate of pay after working 40 hours in any given week. The record keeping requirements applicable to the records of the nonexempt employees include identifying information about the employee, hours and days the employee worked, wages paid to the employee, including any overtime, as well as any wage deductions. There are different requirements for the records of exempt employees. The FLSA includes restrictions on hours of work for minors under 16 as well as lists of occupations deemed too hazardous for minors to work. Indiana state law actually provides more protection for employees and thus would trump the FLSA provisions related to break requirements for breastfeeding mothers.

Image courtesy of Pixabay.com

What does exempt/nonexempt mean?
The overtime and minimum wage provisions provided by the FLSA are applicable only to employees classified as nonexempt. Employees classified as nonexempt are eligible to enjoy the protections provided by the FLSA. Employees classified as exempt cannot benefit from – do not qualify for – the minimum wage or overtime provisions of the FLSA. They are excluded from the FLSA provisions.

How do I know if I am exempt or nonexempt?
Prior to Jan. 1, 2020, in order to be exempt from the FLSA, an employee must be paid a salary of $455 or more per week – $23,660 annually. Additionally, the person must perform duties that would be classified as executive, administrative, professional or be a computer technician, outside sales representative, or highly-compensated employee earning $100,000 or more annually. In order to be exempt, the employee’s job duties and salary must meet all of the FLSA requirements. To find out what duties qualify under the executive, administrative, professional and computer technician exemptions, see this guide.

What are the upcoming changes?
Beginning Jan. 1, 2020:

  • The salary level part of the test – the test that is used to determine if an employee is exempt or non-exempt – is changing from $455 per week to $684 or more per week – $35,568 or more annually.
  • The total annual compensation requirement for “highly-compensated employees” is changing from $100,000 per year to $107,432 per year.
  • Employers will be able to use non-discretionary bonuses and incentive payments – including commissions – paid at least annually to satisfy up to 10% of the standard salary level.
  • The special salary levels for workers in U.S. territories and the motion picture industry have been revised.

Government employers may continue to use compensatory time instead of paying overtime in the event that is the government employer’s policy. Similarly to overtime pay, comp time accrues at 1.5 hours for every hour worked over 40 by a non-exempt employee in any given work week.

When will the changes take effect?
The rule takes effect Jan. 1, 2020. Until that time, everything stays the same.

Who do I contact if I have questions about this?
The U.S. Department of Labor, Wage and Hour Division may be contacted for more information at 1-866-487-9243. The U. S. Department of Labor also has a website that explains the FLSA in more detail.

This blog article is general information and should not be construed as legal advice.  This article reflects Indiana law at the time the article was written but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained above but rather should act on the advice of his/her own legal counsel or other appropriate professional.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Whistleblowing in Indiana

This blog article should be considered general information and should not be construed as legal advice. The article reflects Indiana law at the time the article was written, but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained in this article but rather should act on the advice of his/her own legal counsel or other appropriate professional.

Reports to State Board of Accounts
This past legislative session, the Indiana General Assembly made a lot of little changes to Indiana laws that largely went unnoticed. One of the changes was related to reporting misfeasance, malfeasance or nonfeasance on the part of a public officer to the Indiana State Board of Accounts. SBOA is the state agency responsible for monitoring the financial integrity of Indiana’s state and local government entities. As of July 1, 2019, statute IC 5-11-1-9.5 language broadens to allow reporting to SBOA wrongdoing committed by not just public officials but also by any individual who has responsibility for administering public funds on behalf of an entity. The law provides some job protection, at least in theory, when the report is made by a state or local government employee. However, a report could be made by anyone. The law states that the public office, officer or institution may not retaliate against an employee of the state or local government entity for making such a report to SBOA alleging wrongdoing. The law also provides that an individual who has been terminated, demoted, suspended, threatened, harassed or otherwise discriminated against by the individual’s employer as a result of the individual’s good faith report is entitled to all relief necessary to make them whole again. “Relief” may include reinstatement to their job, two times the amount of back pay owed to the individual, interest on the back pay owed to the individual, compensation for any special damages suffered by the individual including litigation expenses or reasonable attorney’s fees.

Reports made by state employees
Indiana law includes several other whistle blowing statutes. In addition to the above law, there is a whistleblower law that specifically applies to employees of Indiana state agencies. IC 4-15-10-4 provides that a state agency employee may report in writing to a supervisor or the Inspector General a violation of a federal law or regulation, a state law or rule, an ordinance of a political subdivision or the misuse of public resources. This law, like the one previously discussed, also includes some protection for the employee making the report. As long as the employee made a reasonable attempt to determine the information reported is correct, the employee may not be terminated, demoted, transferred or reassigned, have salary increases or employment related benefits withheld or be denied a promotion the employee would have otherwise received just for having made the report. However, the employee can be subject to disciplinary action, including termination, in the event the employee knowingly provided false information. Additionally, employers who violate this law are subject to possible criminal prosecution.

Reports made by local government employees
There is a corresponding whistleblower law, IC 36-1-8-8, that specifically applies to employees of political subdivisions. Political subdivisions are local government entities such as public libraries, schools, cities, towns, townships, counties and more. Just like state employees, local government employees may report in writing a violation of a federal law or regulation, a state law or rule, an ordinance of a political subdivision or the misuse of public resources. However, the report must first be made to the employee’s supervisor or appointing authority unless the supervisor or appointing authority is the person about whom the report is being made. If the report is about the employee’s supervisor or appointing authority, then the statute points to the State Ethics Commission laws to determine to whom the report should be made. It appears a report could be made to the prosecuting attorney of each county in which the violation occurred, SBOA, the attorney general, a state officer or the governor, among others. If a good faith effort is not made to resolve the problem, then the employee may make a report to any person, agency or organization. IC 36-1-8-8 contains similar job protections as its state employee counterpart for good faith reports made by local employees. The state and local laws are also similar in that disciplinary action can be taken against the employee for making a false report. Local government employers who violate this law and who take adverse employment action against an employee who made a good faith report of wrongdoing commit a Class A infraction.

Reports made by private sector employees
There is also a whistleblower law that covers private sector employees whose companies are doing work pursuant to a contract with a public agency. IC 22-5-3-3 is very similar to the whistleblower laws that cover state and local government employees.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Better pay those library fines if you want your full tax refund check!

This blog article should be considered general information and should not be construed as legal advice. The article reflects Indiana law at the time the article was written, but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained in this article but rather should act on the advice of his/her own legal counsel or other appropriate professional.

We’re heading into tax time and many of us are looking forward to our tax refunds. However, did you know that if you have outstanding fines and fees at your public library, the library can have a portion of your refund intercepted and diverted to the library to pay off what you owe? The process is called Set off of Refunds in state law. SooR is a process where public libraries, among other entities who are owed money, can claim and receive that money out of a state tax refund owed to the person who owes money to the library. This is not something the library is required to do, but rather is just another debt collection option available to libraries and other entities. For example, Sally owes the library $150 for ten DVDs she checked out and never returned. The library went through its usual process of attempting to notify Sally and collect the money owed to the library. All the normal collection attempts employed by the library failed. The library then decided to attempt to collect the money from Sally’s next state tax refund through the SooR process.

How does the process work?
First, the library must enter into an agreement with a Department of Revenue-approved clearinghouse. The approved clearinghouse for libraries is the Association of Indiana Counties. When the library has a debt it wants paid from a person’s tax refund, the library must direct the clearinghouse to file an application for the set off on behalf of the library. After receipt of the application, the DOR will determine whether or not the person who owes the debt, known as the the debtor, is due for a tax refund. The DOR will notify the library if the debtor is entitled to a tax refund.

Within 15 days of receiving notice that the debtor is entitled to a tax refund, the library or the clearinghouse must send written notice to the debtor and the DOR of the library’s intent to have the tax refund set off. The debtor is entitled to a hearing to contest the set off if the debtor mails written notice to the library of the debtor’s intent to contest the library’s right to the debt. The debtor must mail this written notice within 30 days after the date the library’s notice of intent to have the tax refund set off was mailed to the debtor.

The total amount of the set off of the debtor’s tax refund may include the actual amount owed to the library, a 15% collection fee payable to the DOR and a local collection assistance fee payable to the clearinghouse, the amount of which is set by the clearinghouse and is not to exceed $20.

After final determination of the validity of the debt, the library must certify to DOR the amount owed by the debtor to the library that is subject to set off. Upon receipt of certification of a debt, the DOR shall set off the appropriate amount and pay it to the library or the clearinghouse. The DOR notifies the debtor of the tax refund set off.

Is the library guaranteed to get the money owed to them through this process?
No, there are a number of variables that could affect whether or not the library can recoup money through the SooR process. It is possible the taxpayer is not due a refund, in which case, the library would not receive any money through this process. Additionally, among the 10 types of entities who can use the SooR process, political subdivisions, which include public libraries, are at the end of the priority list which means other entities will get money owed to them first and there may not be enough left for the library after other creditors have been paid. If the person has the fees owed discharged in bankruptcy, then the library could not recoup the fees.

Is there a time limit by which collection for a specific debt through the SooR process must take place?
The law does not state a time limit after which a debt is not eligible for collection using this process. Additionally, the law does not specify how long a debt must be owed to a political subdivision before the political subdivision can use this process to collect the debt.

Is there a minimum dollar threshold that must be owed to the library before the library can use this process to collect on a debt?
The law does not state a minimum dollar threshold that must be owed before the library can use this process to collect a debt.

How does this work on a joint tax return if only one person is responsible for the debt?
On a joint return, the entire refund is subject to set off unless there is a timely defense raised by a co-refundee who is not a debtor. If a timely defense is raised that the refund is based on a combined tax return of a debtor and a non-debtor, then the set off can only be effected against the debtor’s share of the refund.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Librarian certification by the numbers

It has been a busy quarter for the Certification Department at the Indiana State Library. In July, the Professional Licensing Agency on ISL’s behalf sent over 900 renewal notices to librarians with certificates that expire Sept. 30, 2018. As of Sept. 18, here is a tally of some of the activity that has taken place as a result:

  • 47 notices were returned as undeliverable
  • 23 libraries contacted the ISL about notices for 63 people they no longer employ
  • 6 former librarians contacted ISL directly to say they had retired
  • 175 people have renewed online
  • 192 renewals submitted by mail have been processed
  • About 40 people due to renew have upgraded their certificates instead.

There are currently 2,479 active certified librarians in Indiana. So how did we end up with well over a third of all librarian certificates expiring at the end of this month?

Indiana has a long history of certifying public librarians with the goal of maintaining the integrity of public libraries and the quality of services provided to public library patrons. Our current certification program began in 2008. The first step of that process involved issuing 2,277 grandfathered certificates to all staff working in positions requiring certification, regardless of whether or not they held the necessary credentials. This eased the transition to a new set of certification requirements by protecting those people already employed by libraries from losing their jobs due to the new requirements.

Grandfathered certificates have one significant limitation in that they are not portable. They only remain in force if the individual holding the certificate stays at the same library and in the same job classification held when the certificate was originally issued. Because of this limitation, over the years when the time came to renew most grandfathered librarians have applied for regular certificates instead.

To maintain certification a librarian must earn a prescribed number of librarian education units (LEUs) and renew their certificate every five years. This is true regardless of whether the librarian holds a grandfathered certificate or a regular certificate. Because this five-year certification cycle began by putting all librarians into the same renewal period, certification statistics ebb and flow significantly from year to year with a pronounced increase in both new certifications and renewals every five years.

The first big wave of renewals came in 2013, when 466 people renewed their certificates. We are now experiencing the second wave of renewals for that initial group of librarians certified in 2008. Though some members of this group have retired or left the profession, as of January 2018, our database still included over 400 grandfathered librarians. Many from this cohort have upgraded to regular certificates, but still fall in the same renewal cycle.

Here is a look at our certification numbers over the past ten years:

The number of new librarian certificates each year includes grandfathered librarians moving to regular certificates as well as those who are new to the profession or new to Indiana and those who have earned the credentials to move to a higher level of certification.

Librarian certification rules can be found in 590 IAC 5. They are officially promulgated by the state, but they are actually created and periodically reviewed by teams of Indiana librarians for relevancy and appropriateness. They were last reviewed in 2016, by a committee of librarians representing various professional levels and different-sized libraries throughout the state. The committee recommended some changes, but they overwhelmingly supported maintaining professional standards for Indiana librarians to ensure the public’s information needs are being met by appropriately qualified librarians.

Written by Cheri Harris, certification program director/legal consultant at the Indiana State Library. Find more information about certification on our website here.

Helpful online legal resources available from the Indiana Courts website

Many, or perhaps even most, public librarians in Indiana know that forms for filing for a divorce in Indiana are available at the Indiana Supreme Court Self-Service Legal Center. The forms are divided into four categories: with children with an agreement on all issues, with children without an agreement on all issues, without children with agreement on all issues and without children without an agreement on all issues. But, did you know resources for a number of other legal issues can be found on the Indiana Courts’ website, either at the public courts portal or at the self-service web page?

In addition to divorce, the Indiana Courts web pages also provide helpful information about child support guidelines. Furthermore, parenting time guidelines, a calendar and a child support calculator are available. The Self-Service Legal Center also contains sample forms for expungement and links to help with mortgage foreclosures. A page on small claims court provides a video to watch before making a decision to go to small claims court without an attorney, as well as a link to Marion County Small Claims Court (damages limited to $8,000) rules and forms and a handbook on how to handle small claims court cases outside of Marion County. Information on how to apply for a marriage license is also available.

When you share these resources with patrons seeking assistance with legal research, remember to steer clear of practicing law. Avoid telling the patron your opinion or what you think they should do by using an appropriate disclaimer such as “I can’t offer you any advice. You would need to see an attorney to get legal advice on your individual situation.”

Additional resources:
Indiana Child Support Hotline
(800) 840-8757
Automated payment information is available 24 hours a day, seven days a week. Customer service representatives are available from 7 a.m. until 6 p.m. EST, Monday through Friday.

Indiana Parenting Time Helpline
(844) 836-0003
Help is available from 12 p.m. until 5 p.m. EST, Monday through Friday. Staffed by licensed attorneys who can provide education about parenting time guidelines, information about visitation questions and relevant referrals for assistance.

This blog post was written by Cheri Harris, certification program director/legal consultant, Indiana State Library. Cheri can be reached by email.

How to approach a library employee who may have an invisible disability

Most guidance on employer communication with an employee about a disability starts from the premise that the employee has requested accommodation and the employer needs more information in order to provide appropriate accommodations. An Equal Employment Opportunity Commission (EEOC) guidance document states that an employer may ask for disability-related information, including information about psychiatric disability, when the employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions is impaired by a medical condition. However, best practices suggest focusing on performance or behavior (i.e., what is happening) rather than trying to determine the underlying cause (i.e., why it is happening) because an employee without a disability may have a cause of action under the Americans with Disabilities Act (ADA) if evidence shows that the employer perceived the employee as having a disability.When the employee self-identifies a mental disability – follow the ADA
The ADA applies to local public libraries. The ADA, Title I, prohibits an employer from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, job assignments, pay, benefits, job training and other employment practices. The employer must provide reasonable accommodation for a known disability of a qualified applicant or employee if it would not impose an “undue hardship” on library operations.

Does the employee have a mental impairment under ADA?
The ADA defines “mental impairment” to include “[a]ny mental or psychological disorder, such as… emotional or mental illness.” Examples of “emotional or mental illness” include major depression, bipolar disorder, anxiety disorders (e.g., panic disorder, obsessive compulsive disorder and post-traumatic stress disorder), schizophrenia and personality disorders.

To be considered a disability under the ADA, an impairment must substantially limit one or more major life activities. An impairment is substantially limiting if it lasts for more than several months and significantly restricts the performance of one or more major life activities during that time.

Interacting with others is considered a major life activity. An individual’s ability to interact with others is substantially limited if, over the long term, due to the impairment, he or she is significantly restricted as compared to the average person in the general population.  Some unfriendliness with co-workers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others. An individual would be substantially limited, however, if his or her relations with others were characterized on a regular basis by severe problems; for example, consistently high levels of hostility, social withdrawal or failure to communicate when necessary.

Confidentiality
Employers must keep all information concerning medical history of employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his or her employer. A limited exception to the ADA confidentiality requirements allows you to tell supervisors and managers about necessary restrictions on the work or duties of the employee and about necessary accommodations.

If other employees ask questions about a coworker who has a disability, the employer must not disclose any medical information in response. Nor can the employer tell other employees it is providing a reasonable accommodation for a particular individual, as that discloses the existence of a disability. In response to coworker questions, an employer may explain it is acting for legitimate business reasons or in compliance with federal law.

Reasonable accommodations
An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability unless it can show that the accommodation would impose an undue hardship. Reasonable accommodations might include modifying the person’s work schedule, modifying certain non-essential policies with regard to the employee or adjusting the level or type of supervision provided to allow a more helpful structure. Reassignment may be considered as a reasonable accommodation under some circumstances.

When the employee has not self-identified a mental disability – focus on job performance
From a legal standpoint, an employee thought to have a mental disability must be treated like any other worker. You must focus on the individual’s job performance and behavior without making assumptions about underlying medical conditions or trying to diagnose the person. Approach conversations with the legitimate goal of finding the best fit between people and jobs, independent of the possibility of a psychiatric disorder.

Questions you can ask include:

  • Is there anything you need to be able to keep doing your job?
  • How can we support you in improving your job performance?
  • How can we help you become more effective in your job?
  • Is there anything preventing you from performing your job?

When you hold a conversation based on job performance, the employee may reveal the existence of a disability or condition covered by the ADA. The employee doesn’t need to identify the specific diagnosis, refer specifically to the ADA, or use the term “accommodations” in order for ADA protections to kick in. If an employee says “I have a condition and I need time off to get it under control” or to “regulate my meds” that is enough to be considered a request for accommodations under the ADA. The employer may then ask for reasonable documentation concerning the employee’s disability and functional limitations.

Some employees will choose not to disclose a disability. Other useful information, not related to a disability, may also surface in response to questions about job performance.

Employees may be more likely to disclose their needs, if not the diagnosis, if they know about your nondiscrimination policy and what will happen if they ask for an accommodation.

A library specific example from EEOC guidance
A reference librarian frequently loses her temper at work, disrupting the library atmosphere by shouting at patrons and co-workers. After receiving a suspension as the second step in uniform, progressive discipline, she discloses her disability, states that it causes her behavior and requests a leave of absence for treatment. The employer may discipline her because she violated a conduct standard – a rule prohibiting disruptive behavior towards patrons and coworkers – that is job-related for the position in question and consistent with business necessity. The employer, however, must grant her request for a leave of absence as a reasonable accommodation, barring undue hardship, to enable her to meet this conduct standard in the future.

EAP referrals
If your employees have access to an Employee Assistance Plan (EAP) you may want to refer the employee to the EAP. Be careful to word the referral in terms of “discussing workplace problems.” Do not refer the employee for “counseling” or for “personal problems” as this type of referral suggests you believe there may be a disability. The EAP can broaden the focus to disability related issues without the liability that you, as an employer, could potentially face under the ADA.

If you have additional questions specific to this situation I encourage you to contact your library’s attorney.

Resources:
EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities
Human Resource Executive On Line
The Job Accommodation Network (JAN) is a free consulting service from the U.S. Department of Labor’s Office of Disability Employment Policy providing individualized workplace accommodation solutions, as well as information on the ADA and services related to employment for people with disabilities. Call 1-800-526-7234 (V) or 1-877-781-9403 (TTY) for more information.

This blog post was written by Cheri Harris, certification program director/legal consultant, Indiana State Library. Cheri can be reached by email.

Interstate Library Compact

An interstate compact is an agreement among member states that addresses a common issue. In the case of the Interstate Library Compact, the issue to solve was how to provide the best library services when the distribution of the population makes it more practical for a library to serve residents of another state.

A real world example of what this looks like follows:

Indiana’s Union City Public Library serves the residents of Union City, Ind. Union City also extends into Ohio. However, Indiana’s library card law only allows the Union City Public Library to provide library cards to out of state residents when there is an interstate compact agreement in place. Otherwise, Indiana libraries may only provide library cards to Indiana residents, and they must charge for the cards if the Indiana residents are not part of the library’s tax district. Indiana’s Union City Public Library is the closest public library for Union City, Ohio residents. However, without an interstate compact agreement, the Indiana library could not serve the Ohio patrons.

Images courtesy of Pixabay (https://pixabay.com)

The Interstate Library Compact establishes standards and procedures for providing library services on an interstate basis. States become part of the Interstate Library Compact by enacting legislation that mirrors the language of the compact. Then, member states, or public libraries within the member states, can enter into cooperative agreements with the libraries of other member states.

According to the National Center for Interstate Compacts, there are 34 states that are a part of the Interstate Library Compact. See the list of member libraries who have chosen to enact the Interstate Library Compact into law. Indiana and our neighboring states Ohio, Illinois and Kentucky have all chosen to be part of the Interstate Library Compact. If you have questions about interstate compacts, please contact the Indiana State Library (317) 232-3675 or toll free at 1 (866) 683-0008.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia at sywatson@library.IN.gov.