Eliminate Water Hammer


Water hammer (or hydraulic shock) is the momentary increase in pressure inside a pipe caused by a sudden change of direction or velocity of the liquid in the pipe. Water hammer can be particularly dangerous because the increase in pressure can be severe enough to rupture a pipe or cause damage to equipment. 


It’s a simple fact that liquid flowing in a pipe contains two types of energy: potential energy and kinetic energy. Kinetic energy is attributed to its velocity and potential energy is represented by its pressure. Neglecting friction, the combination of kinetic and potential energy remains constant at all points throughout the length of the pipe. Changing the kinetic energy by changing the liquid velocity forces the pressure in the pipe to change. If the velocity of the liquid decreases (decrease in kinetic energy), the liquid pressure increases (increase in potential energy). 

Water hammer most commonly occurs when a valve is closed quickly and suddenly stops the flow of liquid in a pipeline. When this happens, shock waves travel back and forth through the piping system equal to the speed of sound in that liquid (for water at 70 degrees that is over 4800 ft/sec). These waves travel backward until encountering the next solid obstacle (frequently a pump or check valve), then forward, then back again until pressure is equalized.
Additionally, the sudden closure of a valve in a pipeline causes the momentum of the liquid column to exert a force on the valve’s shut-off element (disc, gate, or ball). This sudden separation of the water column causes two things to happen simultaneously: the pressure on the upstream side of the valve increases and pressure on the downstream side of the valve decreases. The liquid downstream of the valve will attempt to continue flowing, creating a vacuum that may cause the pipe to collapse or implode. This problem can be more serious if the pipe is on a downhill slope. 

To prevent a sudden change of pressure near the valve’s shut-off element, air and vacuum relief valves, or air vents, are installed just downstream of the valve to allow air to enter the line and prevent a vacuum from occurring.

Therefore, the proper opening and closing of valves is fundamental to safe pipeline operation. Closing a valve at the downstream end of a pipeline creates a pressure wave that moves in the upstream direction. Closing a valve in less time than it takes for the shock wave to travel to the end of the pipeline and back is called “sudden valve closure”. Sudden valve closure will change velocity quickly and can result in a pressure surge. 


•   Rapid pump startup can induce the rapid collapse of a void space that exists downstream.
•   Rapid pump shutdown can create a quick change in flow, which causes a pressure upsurge on the suction side and a pressure downsurge on the discharge side. Of the two, the downsurge is usually the major problem. The pressure on the discharge side reaches vapor pressure, resulting in vapor column separation.
•   Check valve slam (Due to sudden deceleration, a check valve may slam shut rapidly.) 
•   Movement of air pockets in a pipe. Air is compressible and if carried along in a pipeline, can act like a spring, being compressed at low spots in a line and expanding at high spots in the line. Compression and expansion produces pressure variations which, if great enough, could produce serious water hammer pressures. 
•   Water-column separation can also result in serious water hammer pressure values when the separated column rejoins at high velocity. 


The following steps can be taken to reduce or eliminate water hammer:

  •  Proper education and training of personnel on the dangers of water hammer and how to mitigate them through proper opening and closing of valves.
  •  Use start-up and shut-down procedures for pumps that reduce the possibility of creating water hammer conditions.    
  • Reduce the velocity of the liquid in the pipe. To keep water hammer low, some references recommend keeping the flow velocity at or below 5 ft./s.  
  • Use slow-closing valves. Anything with a wheel, like a gate valve, is generally considered slow-closing. Valves with handles, like butterfly valves or ball valves, are considered fast-closing.  
  • Use pipe with a higher-pressure rating. For example, DR 26 HDPE pipe is rated for 65 psi, whereas DR 11 HDPE is rated for 160 psi.   
  • Air valves are often used to remediate low pressures at high points in the pipeline by admitting air into the line to reduce the possibility of partial vacuum and possible pipe collapse.   
  • Install pressure relief valves to prevent excessive pressure in the pipe.  
  • Use air chambers, surge vessels, accumulators or expansion tanks that are partially filled with air or gas and cushion possible shock.



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Work-Related Winter Safety Tips

Preventing Slips on Snow and Ice
To prevent slips, trips, and falls, employers should clear walking surfaces of snow and ice, and spread deicer, as quickly as possible after a winter storm. In addition, the following precautions will help reduce the likelihood of injuries:
    Wear proper footwear when walking on snow or ice is unavoidable because it is especially treacherous. A pair of insulated and water-resistant boots with good rubber treads is a must for walking during or after a winter storm. Keeping a pair of rubber over-shoes with good treads which fit over your street shoes is a good idea during the winter months.
    Take short steps and walk at a slower pace so you can react quickly to a change in traction when walking on an icy or snow-covered walkway. Test your footing before committing your whole weight in a step. Be mindful of “black ice” (a thin sheet of ice on a surface that may not be visible to the naked eye).
    Use your door or the roof of your vehicle when getting in and out. Avoid parking on ice if possible.

Winter Driving
Although employers cannot control roadway conditions, they can promote safe driving behavior by ensuring workers: recognize the hazards of winter weather driving, for example, driving on snow/ice covered roads; are properly trained for driving in winter weather conditions, and are licensed (as applicable) for the vehicles they operate. Drive safely during the winter:
•    Slow down, take your time, leave earlier than normal
•    Begin slowing at intersections earlier than normal
•    Avoid stopping or parking on hills or inclines
•    Take corners slower than normal
•    Turn into skids and avoid using the brake
•    Give plenty of space between your vehicle and others and stop where you can completely see the tires of the vehicle in front of you at stop signs/stop lights

Employers should set and enforce driver safety policies. Employers should also implement an effective maintenance program for all vehicles and mechanized equipment that workers are required to operate. Crashes can be avoided. Employers should ensure properly trained workers inspect the following vehicle systems to determine if they are working properly:
    Brakes: Brakes should provide even and balanced braking. Also check that brake fluid is at the proper level.
    Cooling System: Ensure a proper mixture of 50/50 antifreeze and water in the cooling system at the proper level.
    Electrical System: Check the ignition system and make sure that the battery is fully charged and that the connections are clean. Check that the alternator belt is in good condition with proper tension.
    Engine: Inspect all engine systems.
    Exhaust System: Check exhaust for leaks and that all clamps and hangers are snug.
    Tires: Check for proper tread depth and no signs of damage or uneven wear. Check for proper tire inflation.
    Oil: Check that oil is at the proper level.
    Visibility Systems: Inspect all exterior lights, defrosters (windshield and rear window), and wipers. Install winter windshield wipers.

An emergency kit with the following items is recommended in vehicles:
    Cellphone or two-way radio
    Windshield ice scraper
    Snowbrush
    Flashlight with extra batteries
    Shovel
    Tow chain
    Traction aids (bag of sand or cat litter)
    Emergency flares
    Jumper cables
    Snacks
    Water
    Roadmaps
    Blankets, change of clothes

Winter Work Zone Traffic Safety
Workers being struck by vehicles or mobile equipment lead to many work zone fatalities or injuries annually. Drivers may skid or lose control of their vehicles more easily when driving on snow and/or ice-covered roads. It is, therefore, important to properly set up work zones with the traffic controls identified by signs, cones, barrels, and barriers to protect workers. Workers exposed to vehicular traffic should wear the appropriate high visibility vest at all times so that they are visible to motorists. Workers should also remain vigilant regarding their surroundings while working in work zones. Pay attention to what is going on around you and where you are stepping.  Identify potential safety hazards and correct or avoid them.

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Verifying and Documenting Excavation Marks

I (William Sheppard) was a Safety professional in heavy civil construction for over 10 years, and in that time I investigated numerous incidents of breaking functioning underground utilities.  Not once did anyone get hurt or die.  What are odds of dying from a utility strike, you ask?  The odds of being fatally injured are one in five, for those incidents with an injury.  Those aren’t good odds, so if you have hit a utility four times during your career, do not hit another.

Under every city and town in the state and, yes, below our lakes and rivers, run utility lines, tunnels and other structures.  If you hit them some can kill you, and all will cost you.  You will encounter hidden hazards that kill the striker quickly: gas, propane and electricity.  In addition, you may also encounter those that may kill others: telephone and communication cables and national defense lines.  Many people are unaware of these hazards.  Some who are aware do not respect the danger of underground utilities.

Anyone in Oklahoma can dial 811 or use the OKIE811 online service to notify utilities so they can “mark out” their underground facilities. Always remember, you must call for these utilities to get marked, whether you are constructing a new drive way, or driving posts for a new fence, etc.  The OKIE811 system is free, it is easy, and it’s the law.

  • You must call regardless of where the excavation is located.  Even if it’s on private property, out in the middle of a field, or on a street with no name – “You must Call.”
  • You must call if you are only excavating a few inches or just surface grading.  If you move material – “You must Call.”

Each year, approximately 700,000 underground utilities are struck during excavation work, according to the Common Ground Alliance, a group that provides training and education on underground hazards as well as coordinating the “OKIE811 – Call Before You Dig System.”  If you’re lucky and no one is fatally injured, the cost of one utility strike may result in serious financial losses. Additional costs can be fines levied by the utility that can no longer provide service to its clients. These fees can range around $10,000 per hour for loss of service. If you shut down a hospital or stop work at a factory, you will likely pay for their losses too.

It has been my professional experience there are two steps that can help eliminate and reduce excavating hazards - verifying and documenting utility mark out.  Here are some tips to help you, the excavator, work safely and save your municipality money:

Upon arrival at the worksite, prior to beginning the excavation, an excavator should do the following:

  •   Verify that the worksite matches the OKIE811 one-call request and is timely
  •   Verify that all facilities have been marked and review the color codes if in doubt
  •   Verify all service feeds from buildings and homes near the worksite
  •   Check for any visible signs of underground facilities, such as pedestals, risers, meters and new trench lines
  •   Check for any facilities that are not members of the one call center and contact someone to get them located

It is important for excavators and locators to document the location of markings before excavation work begins.  The primary purpose of this best practice is to avoid unnecessary litigation and expensive legal fees for all parties involved.  Additionally, documenting marks is an excellent idea, as marks will be covered by spoils or degraded by weather and construction equipment and there could be, if not caught during the mark-out verification process, mismarked utilities.  In most situations when underground facilities are not properly marked, excavators have no way of knowing where underground utilities are located.  If located markings are adequately documented through the use of photographs, video, or sketches before excavation work begins, it is easier to resolve disputes if an underground facility is damaged as a result of improper marking, failure to mark, or markings that have been moved, removed, or covered.  Make sure to capture documentation (measurements) of marks in relation to permanent landmarks like large rocks, utility poles, pedestals, gates, fences and buildings.

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Governmental Fleets Not Covered by FMSCA Regulations? Think Again!

The Federal Motor Carrier Safety Administration (FMSCA) was established January 1, 2000, to regulate the trucking industry in the U.S.  The primary mission of the FMSCA is to improve the safety of commercial motor vehicles and truck drivers through the enactment and enforcement of safety regulations.

One question Oklahoma cities and towns ask themselves is whether FMSCA regulations apply to governmental fleets.

Many Oklahoma cities and towns believe they are exempt from FMSCA regulations governing truck weight limits and other safety regulations.  It is true that governmental fleets have exemptions for emergency vehicles and snow and ice control equipment.  However, government fleets are not exempt from operating a safe vehicle as defined by FMCSA regulations.

Oklahoma municipalities may be exempt from the highway loading limits; however, they are still subject to vehicle design loading restrictions.  For example, if you plan on loading the rear axle of a flatbed or dump truck to 26,000 lbs., the axle (including springs and tires) must be rated for at least 26,000 lbs.  Otherwise, the flatbed truck used in this example would be considered an unsafe vehicle as mandated by FMVSS (Federal Motor Vehicle Safety Standards).

The three common infractions for government fleets are driving without a CDL (Commercial Driver’s License), not conducting drug and alcohol testing when required and oversize or overweight municipal dump trucks, refuse haulers, or jet-rodders.  It is noteworthy that when municipal vehicles travel to other states, the size and weight violations for these vehicles are left entirely to the discretion of the state in which they are located.  It pays to be aware of the laws of states your fleet may be traveling into.

Over the last decade more and more states have adopted most, or all, of the FMCSA regulations as their regulatory guidelines.  It is important to note that exceptions for governmental agencies only apply to particular chapters and/or sub-chapters of the FMCSA regulations.  If your agency leaves its municipal boundaries or crosses a state line, regulations may apply to your agency in different ways. 

On a related note, private entities doing government contract work, such as for-hire hauling, may  mistakenly believe that FMSCA regulations do not apply to them when they are working for a government agency.  The municipal exemptions do not apply to these private entities, even when they are doing contract work for a municipality.


Government vehicles are not targeted by law enforcement for FMSCA violations.  However, accidents can involve serious ramifications for vehicles with FMCSA safety violations.  If you’re involved in a serious accident, Highway Patrol has the right to impound your vehicles to investigate the incident under FMSCA guidelines.  This is the same way they would treat other carriers; they don’t have special guidelines to follow for governmental agencies.  They will ask for the vehicle’s driver’s vehicle inspection report (DVIR), maintenance and inspection records, and the driver’s file.

It is important to know there is no exception to random annual drug/alcohol testing for all CDL drivers.  All municipal employees who operate vehicles requiring a CDL are subject to the CDL and drug testing requirements.  Only very specific, very narrow exceptions sometimes apply and most municipal fleets do not fit exemptions in these areas.

What are the consequences of violating FMCSA regulations? They are the same for municipalities as for anybody else. The operator of the vehicle could be ticketed. The driver could be ticketed or warned.  If your vehicle is overweight, and you are in a state that enforces that, then you are going to get an overweight ticket. Oklahoma does enforce weight limits.

For more information on CDL drug testing, driver files and FMCSA regulations, contact William Sheppard, OMAG Risk Management Analyst, at wsheppard@omag.org or (800) 234-9461.

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Daylight Savings Time - Increased Workplace Accidents

On November 5, 2017, most Americans turned their clocks back one hour for the end of Daylight Savings Time.  While this means an extra hour of sleep, surprisingly it can also take a toll on health and cause an increase in safety incidents.

The end of Daylight Savings Time can leave many feeling fatigued, which can pose safety risks both at home and in the workplace.  Some things to keep in mind when switching back to standard time are:

Fatigue - Don’t be surprised if you feel a bit sluggish during the first week or so of November.  An extra hour of sleep can be a welcome respite for many people.  But it can also disrupt normal sleep patterns, throwing off the body’s internal clock, or circadian rhythm.  So, while it may be great to have the extra hour of sleep, it is possible that within a few days it can lead to worse sleep, including insomnia or sleepiness. 

Accidents - Evidence suggests that time changes increase safety problems both at work and at home.  Just being aware of the increased risk of accidents in the period immediately following the time change may help you stay alert.  Try to avoid building up a sleep debt before the change, by getting the proper amount of rest.  Adults require 7-9 hours of sleep to be rested.

Those who work in the comfy confines of a carpeted office, may not feel this threat applies to them.  However, others who work in physically demanding jobs, such as public works and sanitation, have been shown to experience more frequent and severe workplace injuries.  Use the occasion of setting your clocks back as a cue for all at work and home to:

  • Pay additional attention while driving: The end of daylight saving time comes with an increase of darkness around the time of rush hour, when traffic is at a peak and many are making their way home from work.  Drivers aren’t used to the decreased visibility – nor are pedestrians, who might take chances crossing roads when they shouldn’t.
  • Stay focused and alert on the task at hand while working in the dark:  Performing any task in the dark may make you drowsy.
  • Check and replace the batteries in your smoke and carbon monoxide (CO) alarms:  Ensure they are working properly and replace the batteries.  As the cold sets in and many start up their gas-fired furnaces, fireplaces, portable heater units and the like for the first time, carbon monoxide poisoning risks increase dramatically.  Replace any smoke alarm older than 10 years and any CO alarm that is older than 5 years.
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What is a Bond, and Who Needs One?

What is a Bond: A bond is an obligation of the Surety (the company issuing the bond) to protect a person or entity (in this case your municipality or public entity) against financial loss caused by the acts of the principal (in this case your city official or employee).  

Municipal or Public Entity Positions to consider Bonding: There are essentially three types of municipal officials or employees serving the municipality or public entity:

First: the elected official who, although ultimately answerable in the political process for their performance, is a representative of those who have elected him or her and owes a duty to faithfully perform the functions assigned to them for the public good.

Second: public agents, or appointed officials, also share the responsibility of owing this special duty to their municipality or public entity. For the appointed official, the duty to faithfully perform emanates from the governmental powers reposed in the official. Power, authority and control would not exist absent the appointment to office.   

Third: the public employee, although serving for the public good, does not owe the same duty as the elected or appointed official. The public employee does not hold a special position of trust relative to the public, but instead owes a duty to his or her employer, in this case the municipality or public entity.

Bond Coverage vs. Your Municipal Liability Protection Plan (MLPP) Coverage:

Bonds serve a different purpose than coverage provided under your MLPP. Coverage under your MLPP protects the municipality or public entity from negligent acts of an elected or appointed official or public employee that could result in a third-party claim or suit. Bonds protect the municipality or public entity from a financial loss as a result of an improper or illegal act of an elected or appointed official or public employee.

What are the Types of Bonds Available:

There are numerous types of bonds available in the market. The most commonly used by a municipality or public entity are Fidelity Blanket Bonds, Fidelity Schedule Bonds, Public Official Individual Bonds, Public Official Schedule Bonds, and Public Official Blanket Bonds.

Fidelity Bonds: Statistics show a shocking increase in employee theft.  The only protections against this kind of loss are good internal control, regular outside audits and a Fidelity Bond. Fidelity Bonds are often referred to as “honesty insurance.” They cover loss due to any dishonest act of a bonded employee. The employee may steal alone or with others. The loss may be money, merchandise or any other property, real or personal. The Fidelity Bond is available in a group (blanket) or individual (schedule) form. These bonds are available in $5k, $10k, $25k, $50k, and $100k coverage amounts for periods of one and three years with the three-year bond provided at a reduced rate.

Public Official Bonds: For the public official entrusted with the handling of public funds, the primary purpose of the Public Official Bond is the protection of those funds from mismanagement and theft: Public Official Bonds guarantee taxpayers that the official will do what the law requires. A public official is expected to “faithfully perform” the duties of the office. Public Employee Bonds are also available for bonding the subordinates of the public official (those people who are not required by statute to be bonded). Those subordinates need to be bonded for dishonesty only.

Types of Public Employee Bonds and Coverages:

Individual Bond – Covers a single official for a specific amount.

Name Schedule Bond – Covers specific individuals for a stated amount in a schedule attached to the bond.

Position Schedule Bond – Covers specific positions for a stated amount in a schedule attached to the bond. 

Public Employee Blanket Bond – This bond covers all employees (except Treasurers, who are required to post individual qualifying public official bonds and cannot be covered by a blanket bond) unless specifically excluded.

Honesty Blanket Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees. Recovery is limited to the bond penalty.

Honesty Blanket Position Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees. The amount of coverage on each employee is the stated limit of liability.

Faithful Performance Blanket Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any employees and failure to faithfully perform their duties or account properly for all monies to an amount not exceeding the stated limit of liability. Recovery is limited to the bond penalty.

Faithful Performance Blanket Position Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees and failure to faithfully perform their duties.  The amount of recovery on each employee is the stated limit of liability.

Who is Required by Law to be Bonded:

Tit. 11 § 8-105. Certain officers to give bond

The municipal governing body shall require the municipal treasurer, any officer or employee designated by ordinance to sign municipal warrants or municipal checks, and any other officers or employees as the governing body may designate by ordinance, to give bond for the faithful performance of his/her duties within 10 days after his election or appointment, in such amount and form as the governing body shall prescribe. The municipality shall pay the premiums on such bonds.

Tit 11 § 1-102. Definition

“Officer or official” means any person who is elected to an office in municipal government or is appointed to fill an unexpired term to an elected office, and the clerk and the treasurer whether elected or appointed. When “officer” or “official” is modified by a term which refers to a personnel position or duty, the holder of the position or duty is not an officer or official of the municipality for any purpose.    

Tit. 11 § 27-111. Bond of clerk and judge

A.    The clerk of each municipal court shall give bond to the governing body of the municipality where the court is established. The bond shall be approved by the governing body and shall be in an amount to be fixed by the governing body. 

B.     The municipal governing body may provide that the judge, the alternate judge, and an acting judge, or any of them, shall give a bond to the governing body of the municipality where the court is established. If bond is required, it shall be in an amount to be fixed by the governing body. It shall be conditioned in the same manner as the bond that is required of the clerk of the court, and it shall be approved by the governing body.

Please contact the OMAG Underwriting Department for the appropriate application.

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Americans with Disabilities Act Amendments Act - Expanding Employee Protections and Employer Obligations

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).

ADAAA: Expanding Employee Protections and Employer Obligations

Expansion of Definition of Actual Disability

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.

Prong 1: “Physical or Mental Impairment”

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.

Prong 1: “Substantially Limits”: Congress’s mandate that the definition of disability be construed broadly.

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.

Prong 1: “Major Life Activities”

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.

Prong 2: “Record of an Impairment”

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.

Prong 3: Expansion of Definition of “Regarded As” 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.

Other Provisions

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.

Conclusion: Impact of the ADAAA

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.

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Open Records Act and Open Meetings Act Amendments

Open Records:

The Open Records amendments to 51 O.S. § 24.A effective November 1, 2017 relates to inspection and reproductions of records which specify the requirement for permissible delay for certain requests. The amendments to this provision are found in 51 O.S. § 24.A (b)(6). There are two new provisions of this subsection to be aware of.

First, “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.” This first addition specifies that delay of access to records shall be permissible in only two situations: (a) preparation time, and (b) if needed to avoid excessive disruption to the public body’s essential functions.

Second, “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.” This second addition specifies a situation where delay is impermissible. The effect of the provision is that even where a public body has received a prior request, they may not delay access to a subsequent request, even where the prior request is substantially more cumbersome. While the statute prohibits only “unreasonable delay,” the prudent decision in this situation would be to begin gathering records upon the receipt of each request, and not to delay a subsequent request until the completion of a prior request.

Open Meetings:

The Open Meetings amendments to 25 O.S. § 311 also effective November 1, 2017 relates to public notice for public meetings by establishing provisions for certain notice on internet sites. While some of the changes to this section have only updated language, multiple portions of this provision have been renumbered due to substantial changes.

First, portions of the additional notice requirements of 25 O.S. § 311(A)(9), have been stricken. Under the old provision, public bodies only had one option for providing this notice (in addition to the requirements of 25 O.S. § 311(A)(1)). 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.

Second, 25 O.S. § 311(A)(10) has been renumbered as 25 O.S. § 311(A)(11), but the text of the provision remains the same. The new 25 O.S. § 311(A)(10) elaborates in further detail the requirements under the new changes to 25 O.S. § 311(A)(9).

The twenty-four (24) hours required in paragraph 9 of this subsection shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma. The posting or distribution of a notice of a public meeting as described in paragraph 9 of this subsection 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.

Two components of this sub-section under the new amendment are noteworthy. First, weekends and holidays declared by the state will not count towards the twenty-four-hour notice required under 25 O.S. § 311(A)(9). Second, the notice requirements of 25 O.S. § 311(A)(9) do not affect the public bodies ability from considering “new business” during its regularly scheduled meetings, and “new business” is defined as “any matter now known about or which could not have been reasonably foreseen prior to the time of the posting.

Third, the former provisions 25 O.S. § 311(A)(11)-(12) have been renumbered as 25 O.S. § 311(A)(12)-(13) respectively. Additionally, 25 O.S. § 311(A)(12) (formerly 25 O.S. § 311(A)(10)) now provides for an alternative to the public posting requirements found in the prior provision.

In lieu of the public posting requirements of this paragraph, a public body may elect to follow the requirements found in subparagraph b of paragraph 9 of this subsection, provided that forty-eight-hour notice is required for special meetings and that the forty-eight-hour requirement shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma.

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.

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Frequently Observed Hazards Noted at Safety Inspections

In July of 2017 Governor Fallin signed a law enabling the Oklahoma Department of Labor-PEOSH division to cite and fine municipalities for safety regulation infractions. Does your city/town meet the basic safety requirements for protecting your workers while they are performing their jobs? Below are some of the basic violations spotted in cities and towns by OMAG Risk Management Services personnel in recent safety inspections. If you are not sure if your municipality would comply with OKDOL-PEOSH regulations, consider contacting OMAG Risk Management Services to request a safety inspection and written report concerning identified hazards. Call (800) 234-9461 and ask to schedule a safety inspection. The report is confidential between OMAG and the municipality. The following are categories that fall under the new law:

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General Safety - Unsafe Acts

Most of us know that accidents are caused by only two things - unsafe acts/practices, and unsafe conditions. Some of us even know that 9 out of 10 accidents are the result of unsafe acts, or things we do when we know better. This is kind of strange if you think about it. We have more to fear from our own actions than from any other job hazards around us. Why do we deliberately expose ourselves to injury every day?

Attitude: “It Won't Happen to Me”
Basically, most of us are just thinking about getting the job done and we tend to rationalize the risk of getting injured. We think to ourselves that we have done this job many, many times this way and nothing bad has happened. Therefore, nothing bad will happen to us today. On an intellectual level, we realize there is a potential danger but decide that the risk of being injured is low. Because we have not been injured so far, we may think of ourselves as being very safety conscious. We know the right way to do it, we realize that it is hazardous to do it this way, but what we are really thinking to ourselves is "It won't happen to me."

Attitude: “It’s OK to Take Short Cuts”
Some of us are meticulous about following safe work practices, but because a job "will only take a minute" we use an unsafe method or tool. For example, not putting on our safety glasses because the job will only take a minute, or not locking out a machine because an adjustment will only take a second. Or maybe even forgetting to inform our supervisor and coworkers where we are, because we'll only be in a hazardous environment for a few seconds.

Usually we think about it just before we do something a little unsafe, or maybe quite a bit unsafe. We know better, we know the safe way to do it, but we take that little chance. In effect we are saying, "I know that this could result in an injury, but "It can't happen to me." Maybe it's human nature to think that accidents always happen to someone else, but they can happen to you too. What makes you different?

Why take a chance in the first place? Only you can decide to take the time to do your job safely and correctly the first time. And don’t forget, your injury doesn’t just affect you.  Stop and think about how it might affect your family and coworkers before you take an unsafe risk.


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