Random Drug Testing & Medical Marijuana Act

The Oklahoma Standards for Workplace Drug and Alcohol Testing Act (OSWDATA) contains the requirements for employer drug and alcohol testing in Oklahoma. To conduct drug and alcohol testing, an employer must have a drug and alcohol testing policy. OMAG has a sample policy on the Human Resources page at www.omag.org/human-resources.

1. There are six different kinds of testing in the Act:

2. Pre-employment Testing;

3. For Cause or Reasonable Suspicion Testing;

4. Post-accident Testing;

5. Random Testing;

6. Periodic Scheduled Testing; and

7. Post-rehabilitation Testing.

The focus of this article is on the random testing category and how that coordinates with the Oklahoma Medical Marijuana and Patient Protection Act (OMMPPA). The OSWDATA has a list of safety-sensitive functions that will allow an employer to randomly test its employees whose jobs require performance of any of the listed functions. The OMMPPA also has a list of safety-sensitive categories; the impact of the listing is that those with medical marijuana cards will not be excused from requirements of testing if they are working in a safety-sensitive classification.  

The definition of safety sensitive is based upon the specific job duties assigned to a position and these should be outlined in the job description. The focus should be on the potential threat posed by an employee who is under the influence in the event they make a mistake or fail to perform their duties because of the influence of the drug/alcohol. The Supreme Court has indicated that a safety-sensitive position is one in which the duties involve "such a great risk of injury to others that even a momentary lapse of attention can have disastrous consequences." The fact that an employee drives a city vehicle is not in and of itself enough to classify the position as safety-sensitive. Is driving regularly a primary function of the employee's duties? If so, then that may get the classification closer to a safety-sensitive classification. If driving is an occasional function and driving is not part of the regular, primary duties, then the classification would likely not be designated as safety-sensitive.  Some good examples of safety-sensitive classifications would be sanitation truck drivers, bus drivers, and ambulance drivers. The fact that a position is assigned to the Police Department is also not enough to classify the position as safety-sensitive.

The language that should be included in the safety-sensitive classification’s job description can be found in the OMAG sample policy.

If your city/town has classifications that perform any of the listed duties, random testing should be considered. Remember, a policy must be in place before any testing can be performed. Contact OMAG for assistance in putting a drug and alcohol testing program into effect.

McGirt and Castro-Huerta, In A Nutshell

In July 2020, the US Supreme Court issued its opinion in McGirt v Oklahoma, a decision which resulted in serious and substantial questions and litigation regarding a state’s ability to prosecute crimes which occurred on Indian land. In June 2022, the US Supreme Court issued its opinion in Oklahoma v. Castro-Huerta, which drastically altered what we understood McGirt to hold. In Castro-Huerta, the Court ruled that States have criminal jurisdiction over all crimes committed by non-Indians within Indian Country, including crimes involving Indian victims. Prior to Castro-Huerta, we understood that Oklahoma’s criminal jurisdiction over non-Indians for crimes within Indian Country was limited to victimless crimes and crimes with only non-Indian victims: this is no longer the case. Also prior to Castro-Huerta, we understood that the Indian status of the victim(s) was critical to the criminal jurisdiction analysis: this also is no longer the case.

Here is a chart that is intended to provide you a snapshot of who has jurisdiction over what crime, taking into consideration both McGirt and Castro-Huerta:

Animal Control Ordinances

Are you one of those hip, smart, early adopters who regularly listens to the “OMAG All Access podcast”? If so, you know it’s a great place to visit and be in the know.

Tulsa area attorney David Weatherford recently spoke on the OMAG All Access podcast, on the topic of “Animal Control Ordinances”. (Episode 41) David is a long-time private practice attorney who also serves Mannford, Mounds, Arkoma, and Sand Springs as their municipal attorney.

Every now and then, the problem of regulating dangerous dogs comes to the attention of the public and municipal staff. Often, it is when a toddler has been injured due to an attack. As heart breaking as that type of event is, municipal officials and staff are often at a loss as how to regulate these animals and get ahead of these events. While cities and towns cannot ban a particular breed of dog, municipal officials can regulate dogs that may constitute a nuisance.

Several years ago, David crafted an ordinance for the City of Sand Springs to regulate this type of nuisance. David’s approach was twofold; to make it unlawful for any person to own, keep or harbor within the city any dog, which shall constitute a “nuisance” or “potentially dangerous” or “dangerous” dog. This ordinance defines a “nuisance dog”, “potentially dangerous dog” as well as “dangerous dog” and further empowers a citizen to initiate a municipal court proceeding to determine whether a dog is a “nuisance,” “potentially dangerous” or “dangerous”.

This allows citizens to file a complaint with the municipal court clerk. With municipal staff stretched thin, and most municipalities without animal control officers, this ordinance gives a citizen direct access to the municipal court system to seek relief from this type of nuisance.

If you believe this ordinance may work in your community, please email Bill Tackett at btackett@omag.org to receive a copy.

OMAG In Action (Volume 3)

OMAG's Police Liability Update (October 2022)

Fun Facts About PPE

Personal Protective Equipment (PPE) is the last line of defense, not the first, when it comes to protecting workers. When it comes to establishing controls to decrease hazards, first comes elimination, then substitution, then engineering controls, administrative controls, work practice controls, then finally PPE.

PPE goes back hundreds of years. As far back as the 1st century there have been recorded cases of PPE used for dust and respiratory protection. As we have studied injury and illness in the workplace over the centuries we have evolved and developed ways to protect our workers.

Did you know?

• Employers must provide PPE to their employees. OSHA and OK PEOSH states that employers must supply required PPE items to employees when a hazard is present (29 CFR 1910.132).

• Training on PPE is imperative and required. OSHA and OK PEOSH requires all employers to provide training to each employee who is required to use PPE based on an on-the-job hazard assessment.

• PPE is a “point of contact” control. Meaning that because a hazard is not able to be removed thru elimination, substitution, engineering, or administrative controls the workers must have and use PPE to protect them from the hazard and reduces the likelihood of exposure to the hazards.

• The most common types of PPE are: Head protection, eye and face protection, respiratory protection, hand & skin protection, and hearing protection. Choosing not to provide protection and enforce its use can and will cost your organization financially, ethically, and morally.

Property, Let Us Help You

Keeping up with your property schedule is important and can be very time consuming. The good news is we are here to help! We understand how busy our members are, so we want to help you feel at ease on the insurance side of things. We can assist with a multitude of things including building values, construction types, square footages, quotes, and even roof inspections on newly acquired buildings. Ensuring that you have adequate building values is most important. Having a loss on a building that is undervalued is the last thing we want for our members. We want to be able to fully indemnify you when there is a loss and the best way to ensure that is to have accurate information which results in adequate values.

If you feel that you have buildings that aren’t insured adequately or haven’t been reviewed in a while, please contact the OMAG Underwriting Department. We can work with you over the phone or in person to obtain information needed to get buildings insured adequately. Through this process we can also help identify structures that aren’t currently covered. We will provide desktop appraisals for these structures and any currently scheduled structures to get them valued where they need to be. We will then provide a quote and let you see any change in coverage and premium before changes are made to your policy. The best part is any mid-year increase in premium from our review is waived for that policy year!

Don't Make Disaster Recovery A Personal Disaster

"Before everything else, getting ready is the secret of success." - Henry Ford

The past few years have been tough on everyone. Every other day it seems there are new stories on the next world-ending crisis or celebrity punching match. Never has our attention been pulled in so many directions at once, and 2022 is far from over. As we know our state is prone to severe weather, but have you ever stopped to consider the age of your water pipes and if they happen to run directly over critical infrastructure? You have heard of cyber attacks ramping up in news stories, but have you truly accepted that these threats are something you may one day find yourself facing? Cook County in Illinois did just that. As the first government infected with the WannaCry virus in the US in 2017 they got an all too real-world test of their preparedness. Their response to the event was as follows.

"We initiated our standard security procedures to address the issue. No major Cook County operations are impacted at this time," - Frank Shuftan

Would your response be the same? When was the last time you performed a full disaster recovery test? Do you know what data you have recorded and where? How long would it take you to restore from backup and have you ever tested to ensure they are sufficient for a return to normal operation? How will loss of data impact your day-to-day operations? Is all this information recorded and easily accessible during an adverse event? Unfortunately, there is no secret I can share to remove planning and organization from disaster recovery. On the contrary, doing the hard work before it is needed is the only way to ensure success when you are faced with a disaster recovery event.

It’s safe to say the rules have changed living in our post covid world. With remote work becoming ever more prominent and our continued reliance on technology, we find ourselves more vulnerable than ever. We must strive in our day-to-day lives to remain prepared for routine failures and natural catastrophes alike. We here at OMAG would like to challenge you to start today. Begin with simply putting all the information you have together in one place. Start a discussion with your departments and begin to plan for the unexpected, you may be surprised by what you find.

“A society grows great when old men plant trees in whose shade they shall never sit.” - Greek Proverb

Police Liability Update: July 1, 2022

Preventing Eye Strain

Intense focus on computer screens, TV, reading, or even hours of driving may cause your eyes to become irritated and itchy. This is known as eyestrain. It is a common condition that has become more frequent in this digital device age.

Tips to help prevent eyestrain:

• 20-20-20 rule – Shift your focus to something other than the activity you are doing every 20 minutes. Focus on an object 20 feet away and look at it for 20 seconds, thus the 20-20-20 rule.

• Correctly position your screen – Make sure you are looking at your digital device at the proper distance and angle. The screen should be about arm’s length from your eyes. View the screen at slightly below eye level, but not so low you strain your neck to look down. Finally, try enlarging the text.

• Find the correct lighting – Lighting can be either too dim or too bright. Lighting should be from behind you if you are reading. Dim lights when watching TV or using a computer, this may help reduce eyestrain. Adjust the brightness on devices as needed. Shade the windows and use filters to reduce glare.

• Multitask correctly – Transcribing notes to your computer may also cause problems not only with eyestrain but with head and neck pain. Position printed material so it is between your keyboard and your computer screen.

• Use Eye Drops – Focusing intensely on screens can result in a reduction in how many times you blink per minute. Less blinking makes eyes get dry and irritated. Using eye drops can help resolve this issue.

• Check the Air – If you are working in a space with poor air quality it may cause eyestrain. You can improve the air with a humidifier or keep the heat down.

  1. Wear Proper Eyewear – Talk to your eye doctor to determine if you need special eyewear. You may need specialized lenses, devices, or eye therapy to assist in preventing strain.

  2. Reduce time spent on a single activity – Limit the time you are exposed to a single activity requiring intense focus. Reduce the amount of daily screen time on devices.

  In many cases, making changes such as the ones noted are all you need to treat eyestrain. If you experience eyestrain that is severe or lasts a long time, talk to your doctor. You may need corrective lenses, or it could be a symptom of a more serious condition.