Administrative Law

Asking library users to leave if they have H1N1

By Mary

Grayson Barber, Attorney, writes:

I am writing to respond to questions about asking customers to leave the library if they appear to have symptoms of the H1N1 flu virus.  Kindly allow me to express thanks to Deborah Caldwell-Stone at ALA, who provided very helpful advice.

As a public building, the library is analogous to city hall. Public officials cannot eject members of the public from city hall unless there?s a very, very good reason for doing so. Members of the public similarly cannot be asked to leave the library, without very strong justification.

The library is different from city hall, in a couple of important ways. As we learned from the case of Kreimer v. Morristown, members of the public have a First Amendment right to use the library. This means, among other things, that if we asked a coughing customer to leave, and it turned out the customer did not have swine flu, the customer could sue the library and win.

Another difference between the library and city hall is, of course, that customers don?t sit down for hours at a time in city hall to breathe on computer keyboards, and the like. But the fact remains that librarians are not doctors, and cannot diagnose H1N1. Moreover, if we started ejecting people for H1H1 symptoms, our boards might ask us to eject people for SARS. And  MRSA. And conjunctivitis. This is beyond our level of expertise.

There IS one circumstance in which I believe it would be possible to ask patrons to leave, but it would be a scenario like Mexico?s last year, in which the public health authorities declared a state of emergency. Naturally, we all hope it doesn?t come to that.

That is to say, if a local public board of health declared an emergency, and closed the schools, we know that many parents would not hesitate to bring their children to the library. In such a situation, it might be prudent to ask the public health authorities to close the library as well. Again, the decision should be made by professionals who have the relevant expertise.

Meantime, the best we (and city hall) can do is to post information about H1N1 and preventive measures. Disinfectant gels and wipes can be strategically placed near computer mice and keyboards. Let?s encourage one another to get our immunizations, and to STAY HOME if we?re feeling ill. (I bet this last is the hardest for librarians.)

Bottom line: If you suspect a customer has H1N1, and you ask them to leave for that reason, you are taking a huge risk if you guess wrong. The better approach would be to encourage the customer to comply with posted guidelines for protecting himself, herself, and the community. I hope this is helpful.

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Editor's note: See also related discussion here.

Full post as published by LibraryLaw Blog on September 20, 2009 (boomark / email).