OMAG's Police Liability Update (January 2023)

OMAG In Action (Volume 4)

Working in the Cold Safety

Preparation is the best way to protect against the dangers of working in extreme cold this winter. Exposure to low temperatures can lead to hypothermia and frostbite.

The following items can be critical attire to be worn during cold weather:

• A hat or headband that covers the ears

• A scarf or knit mask to cover the face

• Sleeves that fit snugly at the wrist

• Mittens rather than gloves if possible

• Water-resistant coat and shoes

• Layers of loose-fitting clothing

To keep warm during these times, take measures such as:

• Use hand and foot warmers

• Stay hydrated and eat many calories

• Keep moving to increase body temp.

• Avoid sitting on cold solid objects

• Tuck sleeves into gloves

• Tuck pants into socks

• Change any item that gets wet

Be sure the outer layer of clothing is tightly woven, preferably wind resistant, to reduce body heat loss caused by wind. Wool or silk inner layers of clothing will hold more body heat than cotton. Excess perspiration will increase heat loss, so remove extra layers of clothing whenever it is too warm.

Do not ignore shivering. It is an important first sign that the body is losing heat. Persistent shivering is a signal to return indoors and warm up.

Traffic Accident Reduction

Traffic accidents are consistently at the top of OMAG’s list of more costly claims. As the number of accidents increase, injuries and fatalities increase. In the modern patrol vehicle, officers find themselves distracted by radios, phones, computers, and other controls. This affects the officer's search for traffic violators and criminal behavior. OMAG has a history of identifying and attempting to address these types of claims through multiple types of training, policy development, and workshops.

OMAG can assist your agency in reducing accidents involving city owned vehicles. To learn more, contact Kevin McCullough at 405-657-1408. You can also e-mail Kevin at kmccullough@omag.org

The Hazards of Energy Drinks

Workers often use energy drinks for a quick “pick-me-up.” When selected in place of water or electrolyte-rich drinks, it is dangerous because they are highly caffeinated and nutritionally deficient. Some workplaces ban energy drinks because of the health risks they pose.  

The following are some reasons to be cautious when drinking energy drinks: 

• Energy drinks can contain as much caffeine as four to five cups of coffee in just 24 ounces. Adults should stay below 500 mg of caffeine throughout the day.

• In the heat, people become dehydrated quicker because energy drinks have high levels of caffeine.

• Caffeine can cause irregular heart rhythms, blood flow problems, and high blood pressure when taken in high doses. Heat and caffeine can put a strain on the body.

• The lasting effects of energy drinks can include insomnia, nervousness, nausea, headaches, and anxiety.  It is possible for workers suffering from these symptoms to be at a higher risk of suffering a workplace injury.

• Never underestimate the effects of caffeine and the stimulants in energy drinks on your body, especially in the heat. You could suffer from severe dehydration, elevated blood pressure, heat stress, or even cardiac arrest. 

Keep caffeine intake at a minimum, and drink water that replenishes the body’s electrolytes.

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.