Check out the new OMAG All Access podcast on all major podcast apps and services. Timely, relevant help on municipal government from your friendly experts at OMAG. Learn more by visiting www.omag.org/allaccess.
SQ 788 (Medical Marijuana) creates broad job protections which largely prohibit Oklahoma municipalities from making hiring or other employment decisions on the basis of a person exercising certain rights granted by these new statutes. How does SQ 788 impact your ability to hire or not hire an applicant who uses marijuana?
SQ 788 protects employees with a Medical Marijuana card from being fired for a failed drug test. It does not, however, protect employees who are high on duty. How does SQ 788 impact drug testing in the workplace?
Can you still discipline employees for being high at work? SQ 788 established certain job protections, but those protections do not allow for on duty intoxication or misconduct. This bulletin will explain what you can and cannot discipline employees for related to their use of Medical Marijuana.
Medical Marijuana license holders may be questioned about marijuana use by current or prospective municipal employers. Whether they can be compelled to answer, however, depends on whether they are currently employed or just applying for a job with the municipality.
Why does OMAG have a $1,000,000 per occurrence Policy Limit when there is no limit to civil rights liability under 42 U.S.C. §1983?
OMAG is not a commercial insurance carrier. OMAG was created by the execution of an interlocal agreement, making OMAG an extension of its member municipalities. The purpose of OMAG, as authorized expressly in the Governmental Tort Claims Act, 51 O.S. §167(C), is to allow municipalities to pool their self-insured risk with one another. Id. see also City of Choctaw v. OMAG, 2013 OK 6, 302 P.3d 1164 and Bd. of Cty. Commissioners v. ACCO-SIG, 2014 OK 87, 339 P.3d 866. The extent of the municipal exposure in tort on any given incident is $25,000 per claim property damage, $125,000 (except for the largest municipalities, all of which retain all self-insured risk) for all other claims, and a total cap of $1,000,000 for any combination of claims. 51 O.S. §154.
Obviously civil rights liability under 42 U.S.C. §1983 is not subject to the limits of the GTCA. That said, under §1983, the civil rights claim must be brought against the “person” who, while acting under color of law, violated a clearly established constitutional right. The US Supreme Court, in Monell, v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) held that a local government could be considered a “person” under §1983 but only to the extent that the Plaintiff could show that the entity caused the violation of the Plaintiff’s rights. This is what is commonly referred to as the policy, practice or custom requirement and requires a showing that the entity caused the loss by some policy, practice or custom it has adopted that caused the employee to cause the deprivation of a Constitutional right. This is an incredibly high bar to clear, especially considering the dialogue to come. But, in short, it is very difficult to successfully sue a governmental entity for civil rights violations.
The real exposure in §1983 is for the individual public employee who allegedly acts under color of law to violate a clearly established constitutional right. Unlike the entity in a Monell claim, the employee enjoys the protections of qualified immunity. Unlike the entity, however, an employee is liable for their actions if those actions violated a clearly established right (Monell would attach only after the showing of a violation if, and only if, the Plaintiff could also show that the employee acted per the direction of a policy, practice or custom). Why is this the City/Town's problem if the City/Town is not a named party?
Under the GTCA, the City/Town is obligated to defend and indemnify its employee(s) in §1983 claims so long as the employee was acting within the scope of their duties under the GTCA. 51 O.S. §162. The key provision that answers the question is found in §162(A)(2) which states that the indemnification obligation is limited to the GTCA tort cap limits in §154 – i.e. to $1,000,000.
Simply put, the City/Town is obligated to defend its employees (subject to their being in the scope of employment) in §1983 claims regardless of the cost. The City/Town is obligated to indemnify its employees in §1983 claims (subject to scope of employment) up to the tort cap of $1,000,000. OMAG fully insures this liability exposure by (1) fully defending the City and employees in all claims without the defense costs eroding the limits of our liability and (2) fully insuring the City for the GTCA per-claim caps and total aggregate cap and (3) fully insuring the City and employees up to the total liability exposure that the City is legally obligated to cover of $1,000,000. OMAG tailors its limits to the taxpayer legal liabilities – nothing more, nothing less. Many commercial carriers offer higher limits and, in doing so, expose the taxpayer to higher premiums to cover a liability risk that they are not subject to. They literally are insuring a risk that does not legally exist.
This Loss Bulletin was written by Matt Love, Deputy General Counsel and Claims Director. You may contact the author at (405) 657-1400. The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.
As the ADAAA does not apply retroactively, and will therefore only apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009. Situations in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability on or before December 31, 2008 the original ADA definition of disability would be applied even if the person did not file with the EEOC until after January 1, 2009.
President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which went into effect January 1, 2009. The changes in the definition of disability in the ADAAA apply to all titles of the ADA, including Title I (employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees); Title II (programs and activities of state and local government entities); and Title III (private entities that are considered places of public accommodation). It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations were published in the Federal Register on March 25, 2011
The ADAAA made a number of significant changes to the definition of “disability.” In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Congress overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. As a result, many more medical conditions will qualify as either an actual disability or a perceived disability for purposes of the Americans with Disabilities Act (ADA).
The ADAAA does not change the ADA’s three prong definition of disability: that a “disability” is a (1) “physical or mental impairment” that “substantially limits” the “major life activities” of the individual; (2) a record of an impairment; or (3) being “regarded as” having an impairment. However, the regulations implement the significant changes that Congress made regarding how those terms should be interpreted.
The definition of “impairment” in the new regulations is almost identical to the definition in EEOC’s original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’s examples of major bodily functions.
The regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The ADAAA states that the primary focus in ADA cases should be on whether covered employers have complied with their obligations and that the determination of whether an individual’s impairment is a disability under the ADA “should not demand extensive analysis.”
Among other things, the ADAAA references the intent of Congress to reject recent Supreme Court decisions holding that an impairment “substantially limits” a major life activity only if an individual is “prevented or severely restricted in an activity that is of central importance to most people’s daily lives.” The ADAAA essentially tells the EEOC, which had defined “substantially limited” in its regulations to mean “significantly restricted,” to devise a more liberal definition.
The ADAAA also rejects another Supreme Court holding that mitigating measures an individual uses to counteract the effects of an impairment (for example, medication) must be taken into account in determining whether an impairment “substantially limits” a major life activity. Under the ADAAA, the only mitigating measures that may be taken into account in assessing whether an individual has a disability are ordinary eyeglasses and contact lenses. The ADAAA further provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity.
The regulations implement Congress’s intent to set forth predictable, consistent, and workable standards by adopting “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction are derived directly from the statute and legislative history and include the following:
The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
Prior to the ADAAA, it was up to the courts to determine whether activities qualified as “major life activities,” using the regulations promulgated by the EEOC as guidance. The ADAAA removes much of the courts’ and the EEOC’s discretion by specifically designating a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, blinking, communicating and working.
The ADAAA also designates the operation of “a major bodily function” as per se a major life activity and provides as examples: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.
An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of “disability.” An individual also can meet the “record of” definition of disability if she was once misclassified as having a substantially limiting impairment (e.g., someone erroneously deemed to have had a learning disability but who did not).
All of the changes to the first definition of disability discussed in the questions above – including the expanded list of major life activities, the lower threshold for finding a substantial limitation, the clarification that episodic impairments or those in remission may be disabilities, and the requirement to disregard the positive effects of mitigating measures – will apply to evaluating whether an individual meets the “record of” definition of disability.
Under the third prong of the definition of disability, individuals are protected from discrimination based on “being regarded as having such an impairment.” Since the only subject in the definition that the word “such” can be read to refer to is “a physical or mental impairment that substantially limits one or more … major life activities of such individual,” courts have generally construed this provision as protecting only individuals whose employers perceive them as having an impairment that is an actual ADA disability, i.e., one that substantially limits an employee in the performance of one or more major life activities. The ADAAA provides that a person will be “regarded as” disabled if the person establishes that he was subjected to discrimination because of an actual or perceived physical or mental impairment – regardless of whether the actual or perceived impairment in fact limits a major life activity. The only qualification on this broadened definition of “regarded as” disability is that impairments that are both “transitory (meaning an actual or expected duration of six months or less) and minor” will not qualify for “regarded as” protection. Not surprisingly, the ADAAA makes clear that employers need not provide a reasonable accommodation to individuals who do not actually have a disability, but are “regarded as” having one.
The ADAAA specifically states that those covered under only the third prong (“regarded as”) are not entitled to reasonable accommodation. Thus, an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation. The regulations clarify that it is generally not necessary to proceed under the first or second prong if an individual is not challenging an employer’s failure to provide a reasonable accommodation.
The ADAAA bars the use of qualification standards, employment tests, and other selection criteria based on an individual’s uncorrected vision unless the standard, test or other selection criteria is shown to be job-related for the position in question and consistent with business necessity. The ADAAA also makes clear that no claim can be brought for reverse discrimination under the ADA; i.e., an individual who does not have an ADA disability cannot state a claim based on preferential treatment afforded an individual who does have an ADA disability.
So what does this mean for employers? As the ADA prohibits discrimination based on an individual’s disability, now more employees may qualify as disabled under the ADA and may request reasonable accommodations to perform their jobs. Particularly with respect to the amendments related to mitigating measures and episodic impairments, requests may come from employees who were never previously known to have impairments. Since these issues are likely to arise in your municipality, now is a good time to become familiar with the requirements of the ADA, including the interactive process and reasonable accommodations.
The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Suzanne Paulson, OMAG General Counsel, at spaulson@omag.org or Matt Love, Associate General Counsel & Claims Director, at mlove@omag.org.
A section of the Open Records Act was amended effective November 1, 2017. The amendment provides additional guidance concerning how a public body may approach producing public records for inspection and reproduction. The amendment is found at 51 O.S. § 24.A.5 (6). There are two new provisions of this subsection to be aware of. The amended statutory section now reads:
6. A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions. A delay in providing access to records shall be limited solely to the time required for preparing the requested documents and the avoidance of excessive disruptions of the public body's essential functions. In no event may production of a current request for records be unreasonably delayed until after completion of a prior records request that will take substantially longer than the current request. Any public body which makes the requested records available on the Internet shall meet the obligation of providing prompt, reasonable access to its records as required by this paragraph; and
This first added sentence underlined specifies that delay of access to records shall be permissible in only two situations: (a) preparation time necessary to respond to the request, and (b) if delay is necessary to avoid excessive disruption to the public body’s essential functions.
This second added sentence underlined specifies an impermissible reason for delay in fulfilling an Open Records request for inspection or reproduction. The effect of the provision is to negate a “first in, first out” rule in responding to Open Records requests. In other words, if a public body had received a prior voluminous request that may take a substantial amount of time to respond to, but then receives a subsequent request for production of records for inspection or reproduction that could be fulfilled more quickly, then fulfilling the subsequent request in a timely manner should be considered, rather than simply filling each request based on the which request was filed first. This legislation attempts to interject a requirement that Open Record requests be evaluated at the time they are filed based on how quickly the records requested can be collected and made available, rather than simply based on a “first come, first served” approach.
Open Meetings:
The Open Meetings Act was also amended 25 O.S. § 311 effective November 1, 2017. This amendment primarily relates to public notice for public meetings being provided through internet websites. The specific language changes to this section can be found at Oklahoma Session Laws 2017, SB 403, c. 105, § 1, eff. November 1, 2017.
Under the prior version of §311 public bodies were required to publish a schedule of regular meetings by December 15th of every year, and then display notice of a regularly scheduled meeting at least 24 hours prior to a regular meeting at the principal office of the public body or the location of the meeting. The Amendment to this section now provides for notice of a regular meeting by posting on the website of the public body at least 24 hours prior to a regular meeting and at least 48 hours prior to a special meeting. The requirement of the content of the notice remains unchanged. Under the modified provision public bodies now have two options for providing notice prior to regularly scheduled meetings, but the public body must choose at least one of the following methods:
a. by posting information that includes date, time, place and agenda for the meeting in prominent public view at the principal office of the public body or at the location of the meeting if no office exists, or
b. by posting on the public body's Internet website the date, time, place and agenda for the meeting in accordance with Section 3102 of Title 74 of the Oklahoma Statutes. Additionally, the public body shall offer and consistently maintain an email distribution system for distribution of such notice of a public meeting required by this subsection, and any person may request to be included without charge, and their request shall be accepted. The emailed notice of a public meeting required by this subsection shall include in the body of the email or as an attachment to the email the date, time, place and agenda for the meeting and it shall be sent no less than twenty-four (24) hours prior to the meeting. Additionally, the public body shall make the notice of a public meeting required by this subsection available to the public in the principal office of the public body or at the location of the meeting during normal business hours at least twenty-four (24) hours prior to the meeting.
The remaining language amendments reword or relocate existing requirements for notice, but do not effect substantive changes. Those requirements include:
The required twenty-four (24) hours’ notice for Regular meetings, or the required forty-eight (48) hours’ notice for Special meetings, shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma. The posting or distribution of a notice of a public meeting through the website of the public body shall not preclude a public body from considering at its regularly scheduled meeting any new business. “New business,” as used herein, shall mean any matter not known about or which could not have been reasonably foreseen prior to the time of the posting.
An additional amendment to 25 O.S. §311.A.9.b was approved by the Legislature effective November 1, 2019 primarily to correct an inaccurate reference to the Statutory provision requiring use of a public body’s website for posting public meeting information as found in 74 O.S. §3106.2. (See Oklahoma Session Laws 2019, SB 740, c. 376, § 1, eff. November 1, 2019)
With this amendment to the §311, public bodies are still required to give notice of all regularly scheduled meetings by December 15th of each year. But the twenty-four (24) hour posting of the regularly scheduled meeting may be accomplished through the public body’s website or by posting at the principal place of business of the public body or the location of the meeting. Similarly, the public body’s website may also be used to publicly post notice the required forty-eight (48) hours’ notice of Special meetings. The language of the statute makes posting on the public building optional if the website posting is used, but many cities continue to post both on the website and on the public building in order to maximize notice to the public of the upcoming public meeting.
The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Jeff Bryant, Associate General Counsel @ jbryant@omag.org.
