Loss Bulletin

Managing Alcohol Sales at Municipal Golf Courses, Country Clubs, or Marinas

This Loss Bulletin is intended to help municipalities reduce their risk of civil liability in connection with offering alcoholic beverages at Municipal Golf courses, Country Club or Marinas.  Understanding current case law and the changes in state regulation of alcoholic beverage sales and acting accordingly should greatly reduce the risk to cities and towns.

On November 8, 2016 the voters of the State of Oklahoma approved a State Question 792 that modified the regulation of alcohol sales throughout the state.  The law was not effective until October 1, 2018 to allow time for transition.  For the most part Article 28 of the Oklahoma Constitution was repealed and Article 28A was put in its place to govern Alcoholic Beverage Laws and Enforcement.  Under the prior regulations, beer or beverages containing 3.2% or less alcohol by volume were not considered to be alcoholic beverages.  Under the new regulations “alcoholic beverages” are defined as “All beverages that contain alcohol, unless otherwise defined by law, shall be considered alcoholic beverages by this state and therefore governed by this Article and all other applicable laws.”[1]

How does this change affect cities and towns across the state?  While municipal golf courses, Country Clubs, or Marinas in the past have been licensed by a county or a city to sell non-alcoholic beverages (3.2% or lower in alcohol by volume) several have asked how the new law might impact beer sales with a greater volume of alcohol in those beverages. 

Implementing statutes to this Constitutional provision can be found in Title 37  and 37A Okla. Stat. Section 1-101 et seq.  During its second session, the 55th Oklahoma Legislature enacted substantial amendments to Title 37 (Intoxicating Liquors) of the Oklahoma Statutes and added a new Title 37A (Alcoholic Beverages). The enactments from the 2016 Session affected over 400 sections in the Oklahoma Statutes relating to alcoholic beverages, including about 370 sections in Titles 37 and 37A.  Most of these amendments from the 2016 Session were effective on October 1, 2018.[2]

During the 2019 legislative session additional clarifications to the law were made by the passage of Senate Bill 728 which passed with an emergency clause becoming effective upon its signing by the Governor on April 10, 2019.  Among other things, SB 728 provided that an alcohol beverage “licensee may sell beer and wine for off-premises consumption if it meets the classification of a golf course, country club, or marina” [3]

First, it is important to know that cities, as political subdivisions of the State, are prohibited from the retail distribution of alcoholic beverages. [4]  If cities and towns are determined to serve alcoholic beverages at golf courses and other qualifying recreational facilities, then one approach is to consider contracting with an independent contractor to provide that service.  An independent contractor would need to apply with the ABLE Commission for the appropriate license(s) to sell both on premises and off premises if the desire is to sell beer that can then be consumed on the golf course.  The licensing process is somewhat detailed and can be accessed on the ABLE website.[5] Some of the advantages of using an independent contractor to provide wine and beer on the public golf course or another qualifying recreational facility are:  1) requires the independent contractor to navigate the applicable ABLE regulations; 2) requires the independent contractor to properly train and supervise their own employees to ensure proper handling of risks associated with serving alcoholic beverages to patrons[6]; 3) minimizes a town or city’s investment needed to provide this amenity for its patrons.  

Another option for a city or town that would like to serve alcoholic beverages at a city golf course or qualifying recreational facility may be to utilize a public trust of which the city or town is a beneficiary.  A public trust is a separate legal entity than a city or town and thus would not fall within the prohibition of selling alcoholic beverages that applies to a city as a political subdivision.  The license from the ABLE Commission could be held by a Public Works Authority, a Municipal Authority, or other public trust organized under the Oklahoma Public Trust Act. [7]  The licensing process through the ABLE Commission would need to be followed. (see footnote #5).  The land or property upon which the alcoholic beverage dispensing would occur would need to be under ownership, lease or control by the Public Trust and all Trustees of the Public Trust will need to execute the appropriate background investigation documents.  In addition, for OMAG member towns and cities who carry General Liability or Property Damage Policies, under Section VI, Exclusion 14 there is no coverage under those policies for serving or furnishing alcoholic beverages for a charge.[8] 

Should a City or town desire to extend coverage to its public trust that would be involved in the sale of alcoholic beverages at our municipal golf courses or other qualifying recreational facilities, then a special rider or waiver of this exemption would need to be considered.[9] Please contact OMAG if you need additional information or guidance.  The information provided in this bulletin is not intended to be legal advice.  Specific facts and circumstances unique to your town or city should be discussed with your City Attorney for legal guidance. 

 

[1]Okla. Const. Article 28A, Section 1

 [2] OSCN has prepared a table that lists all sections in Titles 37 and 37A affected by the 2016 enactments. This table shows the disposition of all affected sections in Title 37 (amendments, repeals, and renumberings), and it shows the source of all sections added to the new Title 37A. This table should help OSCN users to determine which sections in Titles 37 and 37A have been affected. OSCN Dispositional Table – 2016 Acts Affecting Titles 37 and 37A   (PDF, 21 pages)

 [3] Golf course, Country Club or marina pursuant to the most recently adopted North American Industry Classification System (NAICS). 37A Okla. Stat, sections 2-110 (2), 2-128(2).

 [4] Okla. Const Art. 28A § 8. State and other governing entities prohibited from engaging in alcoholic beverage business

The State of Oklahoma, or any political subdivision thereof, or any board, commission or agency thereof, is hereby prohibited from engaging in any phase of the alcoholic beverage business, including the manufacture, sale, transportation or distribution thereof, at wholesale or retail, and the maintenance, ownership or operation of warehouses or alcoholic beverage stores; except that if the voters of a county in which a state lodge is located approve retail sale of alcoholic beverages by the individual drink for on-premise consumption, and if the State Legislature enacts legislation approving such sales in any such lodges located in any such counties, then such sales are authorized. The Legislature may enact laws restricting the involvement of officers and employees of the state and political subdivisions thereof in the alcoholic beverage business.

Provided, that nothing herein shall prohibit the sale of alcoholic beverages legally confiscated as provided by law.

 [5] https://www.ok.gov/able/documents/ABLE%20Form-Beer%20%20Wine%20Application.pdf

 [6] Brigance v. Velvet Dove Restaurant, Inc. 1986 OK 41, 725 P.2d 300 “At common law a tavern owner who furnishes alcoholic beverages to another is not civilly liable for a third person's injuries that are caused by the acts of an intoxicated patron. Such rule is principally based upon concepts of causation that, as a matter of law, it is not the sale of liquor by the tavern owner, but the voluntary consumption by the intoxicated person, which is the proximate cause of resulting injuries, so that the tavern owner is therefore not liable for negligence in selling the liquor.” @301 “We hold today that public policy is better served by holding that the common law principles of negligence are applicable where a commercial vendor for on the premises consumption is shown to have sold or furnished intoxicating beverages to a person who was noticeably intoxicated from which a jury could determine that such conduct creates an unreasonable risk of harm to others who may be injured by the person's impaired ability to operate a motor vehicle. Based upon compelling reasons we, thus, reject the common law doctrine of tavern owner nonliability in Oklahoma.” @305-306.  Oklahoma Courts, since Brigance, have declined to extend the common law modification beyond the factual circumstances of that case, i.e. an innocent third party injured as the proximate cause of the negligence of the commercial server who knew or should have known by their observation that the person being served was too intoxicated to safely operate a motor vehicle. See BATTLES v.  COUGH, 1997 OK CIV APP 62, 947 P.2d 600, Wrongful death action was brought against alleged social host and restaurant for serving alcoholic beverages to motorcyclist subsequently involved in collision that killed passenger. The Court of Civil Appeals, held that the alleged social host was not liable for serving alcoholic beverages to motorcyclist under the facts of that case including there is no duty on vendor to deny service of alcoholic beverages to persons who will or might become intoxicated thereby; evidence that motorcyclist drank three beers and two mixed drinks in one hour and five minutes did not permit inference that restaurant served him alcohol when he was noticeably intoxicated; evidence of loud talking in restaurant by member of group that included motorcyclist also did not permit such an inference.  See OHIO CASUALTY INSURANCE COMPANY v. Todd's Tavern et al., 1991 OK  54, 813 P.2d 508.  Question was certified from Federal District Court regarding possible cause of action intoxicated driver had against tavern owner. The Supreme Court held that tavern owner has no liability to intoxicated adult who voluntarily consumes alcoholic beverages to excess and sustains injury as result of his intoxication.  See TEEL v. WARREN, III, et al., 2001 OK CIV APP 46, 22 P.3d 234. Guest brought action against fraternity for personal injuries he allegedly sustained when he was assaulted by fraternity member while attending a party at the fraternity house. The Court of Appeals held that any action by fraternity which violated statute barring the furnishing of alcohol to a person under the age of 21 could not be proximate cause of injuries suffered by guest at fraternity house when 19-year-old fraternity member became intoxicated and assaulted him; fraternity was not commercial seller of alcoholic beverages, but a social host. 37 Okl.St.Ann. § 537; See also SMITH v. TEEL, et al, 2008 OK CIV APP 7, 175 P.3d 960.  Spouse of car passenger killed in collision with vehicle driven by intoxicated patron of restaurant and dance club brought wrongful death action against restaurant, which was a limited liability company, and two of its alleged managers and owners.  The Court of Civil Appeals held that alleged managers and owners could not be personally liable for death of passenger.

 [7] See Oklahoma Public Trust Statutes - Title 60 Okla. Stat. Section 176 et seq

 [8] OMAG MPPP & MLPP Policies – “VI. EXCLUSIONS. We have no obligation to pay nor do we have any obligation to defend any claim against a plan member on account of:  . . . 14. Loss for which any plan member, if serving or furnishing alcoholic beverages for a charge, may be held liable by reason of:   a. causing or contributing to the intoxication of any person; or  b. the furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol.”

 [9] Thirty-five OMAG members cities have been identified as having properties described as golf courses in the MPPP. Those members in the MPPP using that criteria are: Altus, Ardmore, Blackwell, Boise City, Buffalo, Cedar Valley, Clinton, Edmond, Enid, Fairview, Guymon, Hobart, Hooker, Kingfisher, Lindsay, Medford, Midwest City, Okeene, Owasso, Pawnee, Ponca City, Prague, Pryor Creek, Purcell, Sand Springs, Sapulpa, Sayre, Seminole, Shattuck, Stroud, Tahlequah, Walters, Watonga, Wewoka and Woodward.  In addition, any city or town that OMAG provides general liability coverage (MLPP) to that are not afforded property coverage by OMAG has the same exclusions contained in that policy. That portion of the reported expenditures on the forms provided by our members to the State Auditor report expenditures for Culture & Recreation could include expenditures for parks, playgrounds, golf courses, swimming pools, museums, marinas, community music, Drama, celebrations, and zoos.  So, some additional effort would be needed to poll other cities to see if they are anticipating selling alcoholic beverages at golf courses or other qualifying recreational facilities.

 

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September 2018 Risk & Safety Newsletter

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Consent to Search When There Are Co-occupants of a Residence

The Supreme Court has long held that police officers may search a jointly occupied residence if one of the occupant’s consents.  United States v. Matlock, 415 U.S. 164 (1974).  In 2006 the Court recognized a narrow exception to this rule, holding that consent of one occupant is insufficient when another occupant is present and objects to the search.  Georgia v. Randolph, 547 U.S. 103 (2006).  On February 25, 2014 the Court clarified Randolph by ruling that the police can search a home without a warrant, even if one co-tenant objects, as long as, the objecting co-tenant is no longer on the scene and another co-tenant gives consent. Fernandez v. California, 571 U.S. 292 (2014).

In Fernandez, police officers responding to a call about a violent robbery observed Fernandez run into an apartment building and heard screams coming from the apartment.  Officers knocked on the apartment door, which was answered by a woman who appeared to be battered and bleeding.  The suspect then came to the door and objected to the officers entering the apartment.  The officers removed the suspect from the apartment, arrested him, and took him to the police station on suspicion he had assaulted the female. An officer returned to the apartment an hour later and, after obtaining the female’s oral and written consent, searched the premises where he found several items linking Fernandez to the robbery.

Fernandez’s attorney, citing Georgia v. Randolph, attempted to have the items found in the apartment suppressed from evidence, arguing that Fernandez had objected to the search of the apartment before he was taken into custody. The Court refused to suppress the evidence and stated that Randolph was strictly limited to situations when the objecting co-tenant is physically present. The only case in the 10th Circuit that has addressed this issue is the United States District Court for the District of New Mexico.  of the New Mexico Court has adhered to the strict limitation of Randolph and found that consent to search will not be invalidated by a defendant’s objections if the defendant is either (1) not present while consent was given, or (2) has been lawfully removed. United States v. Montoya, 2016 U.S. Dist. LEXIS 152828 (D.N.M., Nov. 2, 2016).

The lawful tenant of a residence has the right to invite law enforcement to enter and conduct a search.  In fact, the Court explained that if a lawful tenant wants to invite police inside her house, police shouldn't have to first get permission from a magistrate before accepting the invitation. Requiring officers to obtain a warrant when a warrantless search is justified may interfere with law enforcement strategies and impose an unmerited burden on the person willing to consent to an immediate search.

A third party may consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. United States v. Guillen, 2018 U.S. Dist. LEXIS 75832 (D.N.M., Sept. 8, 2017). When a third-party consents to a search, officers must inquire into the relationship between the defendant and the consenter to determine whether the third party has apparent authority to consent and whether that relationship is the type where it could be presumed that the consenter has control over the property. Unless facts demonstrate that the defendant and the third party had some sort of agreement—leading to an expectation of privacy in his room—the third party’s authority to consent is presumed. And when a third-party consents to a search, and the defendant fails to object to the search, the court will treat the failure to object as a “good” indicator that consent existed.

The court in Guillen denied a defendant’s motion to suppress evidence that was seized from a child’s room after the father had consented to the search. After entering the home and questioning the child, who was a suspect in a criminal investigation, the child’s father returned home, and upon his arrival officers asked for his consent to search the home. Although the child was a very private person and had a previous agreement with his father that he could not enter his room without his permission, the court found that police officers did not violate the child’s expectation of privacy because it was reasonable for them to believe that his father had apparent authority to consent to the search and were unaware of any agreements made between the child and his father.

To sum it up, the Court’s opinion focuses on the physical presence of the objecting co-tenant.  If the objecting co-tenant is physically present and objects to a search, then the police cannot search the residence.  If the objecting co-tenant has been lawfully removed from the scene then the police may search if there is consent from a co-tenant. 

          

“Fernandez v. California— Consent Required for a Warrantless Search” was written by Suzanne D. Paulson, OMAG Associate Counsel and updated by Alan Taylor, legal intern. You may contact the author at spaulson@omag.org. The information in this Risk Alert 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.

                                                                                                                                                      

                                                                                                                                                                                                                    March 2014 (updated 7/2018)

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Managing Jail Liability

This Loss Bulletin is intended to help municipalities, and their law enforcement officers and jailers reduce their risk of civil liability in connection with the maintenance and operation of their jails.  Understanding the current case law and acting accordingly should significantly decrease the risk to cities and towns, police officers, supervisors, and jailers from lawsuits filed by prisoners and their families.  This bulletin covers the general duty imposed on prison officials; a prisoner’s right to care for serious medical needs; the duty to prevent suicides; the duty to protect inmates from others; liability arising out of the use of other jail facilities; and the obligation to pay for medical expenses of prisoners. The liability discussed herein is for civil rights violations pursuant to 42 United States Code §1983 unless noted otherwise.  The cases reported are applicable to municipalities in Oklahoma.

Introduction:

Local governing bodies can be sued directly only where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.

In order to state a claim for municipal liability under § 1983 for the actions of a municipal employee, a party must allege sufficient facts to demonstrate that it is plausible (1) that the municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). The plaintiff must further show that “the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013).

To satisfy the deliberate indifference standard, a plaintiff must provide “proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). The city policymakers must also have actual or constructive notice of the particular issue or action. Connick v. Thompson, 563 U.S. 51, 61 (2011). A municipal policy or custom can take the form of:

(1) a formal regulation or policy statement;

(2) an informal custom amoun[ting] to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law;

(3) the decisions of employees with final policymaking authority;

(4) the ratification by such final policymakers of the decisions — and the basis for them — of subordinates to whom authority was delegated subject to these policymakers' review and approval; or

(5) the failure to adequately train or supervise employees, so long as that failure results from 'deliberate indifference' to the injuries that may be caused.”

Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).

Duty Imposed on Prison Officials

The Tenth Circuit provides an in-depth discussion of the general duty imposed on prison officials in Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008).  Tafoya was an inmate who was sexually assaulted by a male officer while performing her work duties on multiple occasions. The County Jail where the assault occurred had a history of officers sexually assaulting female inmates, and three years before the action, two officers had even been convicted and imprisoned for the offenses. Before Tafoya’s assault, in response to other officer’s convictions, the County Sheriff had taken “some steps to remedy the risk to female inmates of sexual assault.” Id. at 915. These steps included firing the jail administrator, installing additional surveillance cameras, the hiring of additional female staff, and the implementation of sexual harassment training.  Id.

In Tafoya, the issue before the Tenth Circuit was “whether, notwithstanding these steps, Sheriff Salazar's alleged failure to implement and enforce other policies to protect female inmates amounted to deliberate indifference.” Id. at 915-16. The Tenth Circuit held that prison officials have a duty “to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from serious bodily harm.” Id. at 916. Explaining that not every injury suffered by an inmate gives rise to a breach of duty, the court identified a two-step inquiry for determining the breach of this duty by a prison official. Id.

First, “the alleged injury or deprivation must be sufficiently serious.” As to this prong, in this instance, judged on an objective standard, the Tenth Circuit found that a sexual assault easily satisfied this requirement. Id. Second, the official must have a “sufficiently culpable state of mind.”

Next, elaborating on the second prong, the court applied the “deliberate indifference” standard to determine the culpability of a prison officials mental state, the satisfaction of which required “the official knows of and disregards an excessive risk to inmate health or safety.” Id. In contrast to the first prong, this determination is a subjective standard which requires first that “the official actually be ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists. . . .’”

The court further explained that knowledge of this risk need not be particular to a certain inmate, nor a particular way in which injury might occur, and although a subjective standard, “a jury is permitted to infer that a prison official had actual knowledge . . . based solely on circumstantial evidence, such as the obviousness of the condition.” Id. at 916-17. Nonetheless, there can be no “deliberate indifference” without the official’s awareness of the risk. Id. at 916. Upon a finding of awareness of potential harm, the deliberate inference standard requires second the failure “to take reasonable steps to alleviate that risk” for liability to attach. Id.

Explaining that a prison official may still be liable for harm suffered by inmates despite “efforts reasonably calculated to reduce the risk, if he intentionally refuses other reasonable alternatives and the dangerous conditions persist” the court found the sheriff’s failure to enforce the new polices he had implemented, and the “anything-goes” culture among the detention officers rose to the level of deliberate indifference. Id. at 917-19. Due to these findings, the court denied the prison officials motion for summary judgment. Id. at 922.

Prisoners’ Right to Care for Serious Medical Needs

The standard of care owed a prisoner, which the Tenth Circuit applied in Tafoya (discussed above) was established in 1976 by the United States Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976). Gamble was an inmate who claimed he had hurt his back while unloading a truck.  Id. at 99. He complained that he was unable to get adequate medical care from the prison officials despite repeated requests.  Id. Gamble sued the prison officials because they had subjected him to cruel and unusual punishment in violation of his civil rights under 42 U.S.C. §1983. Id.

The Supreme Court agreed with Gamble and held the government has a fundamental obligation to provide medical care to prisoners in its custody. Id. at 103. The Court explained, “an inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Id. at 104. The Supreme Court explained that prisons are required to provide medical care to incarcerated prisoners because they are unable to take care of themselves as a result of the state’s deprivation of their liberty. Id. The Court further held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain. . . .” Id.

The denial of medical care which results in the infliction of unnecessary suffering is inconsistent with contemporary standards of one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Ramos v. Lamm, 639 F.2d 559, 575 (1980).  While this case dealt with an inmate in prison, the legal principle would likewise apply to a municipal prisoner or pretrial detainee. Estelle, 429 U.S. at 560.

It is important to note that while establishing the standard of care owed to a prisoner in Gamble, the Supreme Court explicitly identified the standard of care owed to prisoners is the same for prison guards and prison doctors alike. Id. 104-05. Thus, a doctor’s indifference to prisoners’ needs is treated the same as a guard who delays, denies, or interferes with a prisoner’s medical care. Id. Nonetheless, the Court also took pains to explain that not ever claim of inadequate medical treatment by a prisoner states a violation of the Eighth Amendment. Id. at 105. In other words, a simple medical malpractice claim does not rise to the level of an Eight Amendment violation on its own; the prisoner must allege an act or omission “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106. In any case, for situations involving either malpractice or deliberate indifference rising to a constitutional violation, civil liability may lie.   

Suicide: Duty to Protect Prisoner

It is difficult to grasp the concept that a municipality may be liable for an individual’s act of suicide.  After all, no municipality has an official policy endorsing or aiding prisoners in their attempts to end their lives.  However, juries and courts have often shown sympathy toward the decedent’s families in these cases.  These families have convinced courts that municipalities should be liable for the suicide, not because of any affirmative action but for lack of action.

In Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), the widow and parents of Ronnie Garcia were awarded $147,000 for his negligent death while he was an arrestee. Id. at 305, 311. Garcia was arrested for driving under the influence of alcohol after he had been involved in a traffic accident.  Id. at 305. He complained of back pains and was transported to a hospital.  Id. In his possession were three bottles of medication which had been prescribed for him after he had been released from surgery two days earlier. Id. At the hospital, Garcia was lucid, talkative and oriented. Id. He refused to be examined. Id. Garcia was left alone in the examining room and apparently ingested an overdose of barbiturate, one of the prescribed medicines. Id.

He was found by the police passed out on the pavement outside the hospital.  A doctor examined him and determined that he was semi-conscious. Id. The doctor had no knowledge that Garcia had ingested drugs. Id. Garcia had a strong odor of alcohol on his breath. Id. The doctor asked the officers if Garcia could be medically observed at the jail. After being told he could, the doctor approved his transfer to the jail. Id. The jail medic directed that Garcia be placed in a holding cell and be checked every 15 to 20 minutes. Id. at 306. Approximately four hours later he was still unconscious. Id. About two hours later he was found nearly dead.  Garcia was taken to a hospital and twelve days later was diagnosed as brain dead.  Id.

At trial, a medical expert said that Garcia would have survived the alcohol and ingested drugs if he had been taken to the hospital to be stabilized. Id. Another physician testified that the county failed to afford reasonable medical care to Garcia due to his condition. Id. The county sheriff testified that it was the county’s policy to jail unconscious individuals suspected of being intoxicated.  Id. This was corroborated by the jail physician and medic. Id.

Despite this testimonial evidence about the policy, the Salt Lake County Jail had adopted the following written policy statement regarding prisoners:

Prisoners who are injured, unconscious, or otherwise in need of immediate care, or diagnosis will be transported to the hospital by the arresting officer before the prisoner will be accepted for booking.

Id. The Salt Lake County Sheriff’s Office had the following written policy regarding semiconscious or unconscious prisoners:

(1) Deputies will not deliver to the County Jail any prisoner who is unconscious or semiconscious and has to be carried into the jail.

(2) All arrested persons in the above stated condition shall be taken directly to the hospital for emergency treatment or medical treatment or medical diagnosis before being booked.

Id. The Court stated that deliberate indifference to serious medical needs may be shown by proving there are such gross deficiencies in staffing, facilities, equipment, or procedures that the inmate is effectively denied access to adequate medical care.  Id. at 307-08. The Court concluded that the jury’s finding was supported by sufficient evidence of gross deficiencies and deliberate indifference to persons admitted to jail in an unconscious condition who were suspected of being intoxicated. Id. at 308.  It was this level of indifference, the Court held, that caused the violation of Garcia’s constitutional rights. Id.

However, in another case, where the Court held that jail staff had no reason to suspect that a pre-trial detainee, who was intoxicated or under the influence of drugs, posed a risk of suicide, as is required to support a claim of deliberate indifference to detainee’s serious medical needs. Estate of Hocker by Hocker v. Walsh, 22 F.3rd 995 (10th Cir. 1994). Hocker committed suicide by hanging herself while detained in the Cleveland County detention center in Norman, Oklahoma.  Id. at 997. She had been arrested for trespass, public intoxication and possession of controlled dangerous substances. Id. at 996.

At the time of Hocker’s arrest she walked to the patrol unit on her own power, carried on a conversation with a passenger, and walked into the book-in without need of assistance.  Id. The book-in sheet described her as not violent or self-destructive, and apparently not on medication. Id. She was placed in a receiving section that was monitored until she was sufficiently sober to be placed with the general population. Id. at 997.

The next day Hocker was processed to be arraigned before the municipal court, although she spent most of the day asleep and remained somewhat incoherent or “still intoxicated” according to jail records. Id. On the following day, she visited with her attorney at the detention center.  An hour and a half later she was discovered in her cell hanging from the upper bunk with a towel around her neck. Id.

The Tenth Circuit found there were no facts which suggested that the detention center staff had knowledge of the specific risk that Hocker would commit suicide. Id. at 999-1000. Nor did the facts suggest that Hocker’s risk of suicide was so substantial or pervasive that knowledge could be inferred. Id. Though the staff obviously knew that she was intoxicated or under the influence of drugs, the Court ruled that intoxication with its accompanying incoherence did not, by itself, give the staff knowledge that Hocker posed a specific risk of suicide. Id.

Duty to Protect Prisoners From Each Other

The issue of whether cities and towns are required under federal law to protect prisoners from each other was addressed in Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). Id. at 1497. Mark Berry was arrested for burglary of a National Guard Armory.  Id. After his arrest, he informed on his partners in crime who were later arrested. Id. They were held together in the same jail facility awaiting sentencing.  Id. About a month later Berry was murdered by his former partners. Id.

In this jail facility prisoners were allowed twenty-four-hour access to each other.  There was no jail policy which inquired whether a prisoner had implicated other prisoners in a crime or was a police informant. A jail expert for the family of Berry testified that this lack of policy was a contributing factor leading to Berry’s death because it was “extremely reckless” and an “extremely serious departure from accepted standards and procedures.”

Berry’s wife testified at trial that (1) her husband expressed fear for his safety, (2) she informed an unidentified jail employee of her husband’s fears, and (3) she asked the jail employee if there was any way Berry could be moved out of the cell because the guys he informed on were going to be put in there with him.  No preventative action was taken.

The Court held that to establish the City’s deliberate indifference to Berry’s safety under the facts, it must be shown that:

(1) the City had actual knowledge of the specific risk of harm or that the risk was so substantial or pervasive that knowledge could be inferred,

(2) the City failed to take reasonable measures to avert harm, and

(3) the City’s failure to take such measures in light of its knowledge, actual or inferred, justifies liability for the attendant consequences of its conduct, even though unintended. 

The Court stated that the City cannot absolutely guarantee the safety of its prisoners, but it has a constitutional duty to take reasonable steps to protect a prisoner’s safety and bodily integrity.

In a rather bizarre case, the United States Supreme Court examined the issue of whether a public official could be held liable for the transsexual rape of a prisoner by another prisoner. Farmer v. Brennan, 511 U.S. 825 (1994).  Farmer was a preoperative transsexual who projected feminine characteristics but was placed in the general male population.  He was subsequently beaten and raped by another inmate.  Farmer alleged in his claim against the prison officials that they were “deliberately indifferent” to his need for safety.

The Court stated that “the Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.”  It explained in the opinion that the Constitution imposes duties on prison officials to “take reasonable measures to guarantee the safety of inmates and to protect prisoners from violence at the hands of other prisoners.”  Prison conditions may be “restrictive and even harsh but gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective” the Court held.  Although this case involved a prison, the legal principles would likewise apply to a municipal jail and its police and detention officers.

Use of Other Jail Facilities

It is commonly assumed by police officers that their liability for a prisoner’s well-being stops when the prisoner is booked into another law enforcement agency’s jail.  Unfortunately, such is not always the case.  If the law enforcement agency that receives a prisoner from your municipality has not formally agreed to be solely responsible for the prisoner’s well-being and medical needs, your municipality may still be liable for its proportion of the prisoner’s damages if a jury finds your municipality acted negligently.

Thus, it is advisable in situations where prisoners are frequently arrested by one law enforcement department and booked into the jail of another department, that both departments have a formal agreement stating when it is that a prisoner is considered to be in the care, custody, and control of the jail.  Without such an agreement, questions may arise which can significantly affect liability. For example, is a municipal prisoner in a county jail under the control of the municipality until the prisoner is booked or until the prisoner is arraigned?  These types of questions should be resolved in a written agreement between the departments.

Police departments should consider executing a hold harmless agreement with any other department which accepts their prisoners.  This agreement should contain a provision whereby the receiving department indemnifies the transporting department from any injury or loss that may occur to a prisoner while incarcerated.  Likewise, the receiving department should be indemnified by the transporting department for any injuries caused by the transporting department before the prisoner’s incarceration.  A draft copy of a hold harmless agreement is available from OMAG.

Of course, regardless of how a prisoner may have come into your municipality’s custody if the prisoner shows signs of or is complaining of injury or illness, the recommended procedure is to have the prisoner examined by a qualified healthcare provider.  Both the arresting department and the jailing department should document the medical condition of every prisoner they take into custody.  When a prisoner is booked into a jail, the transporting department should always give the receiving department any information it has about a prisoner’s medical condition or disabilities. 

For example, the arresting officer may be aware that the prisoner has taken certain drugs or that the prisoner has an arm or shoulder problem which prevents him from being handcuffed behind his back.  If the prisoner is subsequently injured or develops medical complications in the jail due to the lack of this information, the transporting department may be liable for failure to make the appropriate disclosure about the prisoner’s condition.

For a further discussion of this and related issues see Oklahoma Law Enforcement Operations Bulletin, volume 2, number 5, entitled “Legal Issues Concerning Transporting and Holding Arrestees and Prisoners,” which is currently available from OMAG.

Medical Expenses

Determining responsibility for payment of medical expenses for persons in police custody is sometimes fraught with contradiction.  State law provides that a municipality is responsible only for medical care required by its act or omission.  However, civil rights case law holds that municipality responsible for seeing that the person in custody receives medical care.  Oklahoma statutes address when a municipality is liable for the payment of its prisoner’s medical expenses.  Oklahoma Statutes title 11, §14-113, provides that:

“When a defendant is in the custody of a municipal jail, the custodial municipality shall only be liable for the cost of medical care for conditions that are not preexisting prior to arrest and that arise due to acts or omissions of the municipality.  Preexisting conditions are defined as those illnesses beginning or injuries sustained before a person is in the peaceable custody of the municipality’s officer.

An inmate receiving medical care for a preexisting condition or a condition not caused by the acts or omissions of the municipality shall be liable for payment of the cost of care, including but not limited to, medication, medical treatment, and transportation costs, for or relating to the condition requiring treatment.

Therefore, under state statute a municipality would not be liable for the medical expenses associated with the treatment of a prisoner who required medical care for a heart problem if it can be proven that the heart problem existed before the prisoner was arrested or incarcerated.  In this case any obligation for the payment of medical expenses should rest with the prisoner.

On the other hand, injuries arising out of the acts or omissions of a municipality while a prisoner is in its custody would impose liability upon the municipality for the payment of the prisoner’s medical expenses. So, for example, if a prisoner slipped in the shower and was injured due to an unreasonably slick floor, the municipality would be responsible for the medical expenses associated with the treatment of the injury.

Notwithstanding the state statutes, it is essential that law enforcement departments provide prompt medical attention to any prisoner when a medical need arises.  As previously discussed, failure to do so may result in a civil rights violation under 42 U.S.C. §1983.  It should also be noted that in an unreported decision in the United States District Court for the Western District of Oklahoma, the court found that a statute identical to §14-113 (except that it applied to counties, Okla. Stat. 19, §746) was unconstitutional as it was applied to the pretrial detainee plaintiff.  Rivera v. Board of County Com’rs of Comanche County, case no. CIV-93-266-W (W.D. Okla. 8/11/93).

Plaintiff Rivera was an indigent pretrial detainee in the county jail and while in the jail was found to have a form of cancer.  The county agreed to transport Rivera to receive chemotherapy, but refused to pay for the treatment.  The county argued that under 746 Rivera had a preexisting medical condition and therefore the county was not responsible for payment of Rivera’s chemotherapy. 

The court found that the county’s application of §746 to Rivera was unconstitutional because it effectively prevented him from receiving needed medical services.  The court stated that “[d]efendants may not refuse the provision of needed medical services [based] upon plaintiff’s ability or inability to pay.” Id. at 6.

In a recent Oklahoma Supreme Court case a sheriff argued that the county was not responsible for a prisoner’s medical bills since the injuries occurred while the prisoner was at large.  The prisoner was injured when he jumped from a third-story window in his attempt to escape from the jail.  Upon recapture, the prisoner was treated for his injuries and returned to the jail.  The Court held that the county’s responsibility arose when the prisoner was apprehended.    

It stated the statute imposes a duty to provide medical care to any county prisoner in need of medical care, regardless of how the need arises.  State ex rel. Dept. of Human Services v. Board of County Com’rs of McClain County, 829 P.2d (Okla. 1994).  See also State ex re. Dept. of Human Services v. Board of County Com’rs of Oklahoma County, 831 P.2d 1006 (Okla. 1991) (County liable to DHS regardless of whether inmate was indigent or whether DHS attempted to collect medical expenses from inmate). Although these cases involved county sheriff’s departments, based on the court’s reasoning it is very likely that the decision would be the same if a municipality was the defendant.

Conclusion

It is imperative that municipal officials and police departments understand the legal duties which are imposed upon them because they use or operate jail facilities.  If your police department has been “deliberately indifferent” to the medical needs of a prisoner and injury results, then the municipality, public officials or police officers may be liable for damages under 42 U.S.C. §1983.

Adequate medical care includes monitoring a prisoner when s/he exhibits suicidal behavior.  This requires that all law enforcement officers who handle a prisoner share information about the suicidal behavior or the medical condition of the prisoner. A written medical inventory or screening form should be kept for each prisoner taken into custody.

A prisoner has the right to protection from other prisoners when the officers operating the jail are aware of the imminent danger of injury to the prisoner. Under §1983 your city or town, or its officials may be liable for a prisoner’s damages if they are deliberately indifferent to a situation where it is likely that the prisoner will be harmed by other prisoners.

Liability for a prisoner does not automatically stop when the prisoner is released to the custody of the jail.  A written agreement between your department and the receiving department or agency should clearly set forth the responsibilities of each party for the care and custody of a prisoner.

Under certain conditions municipalities are required by state statute to pay for the medical expenses of prisoners who are detained in their jails.  However, even if a municipality is not required to pay for medical expenses by statute, failure to provide needed medical treatment to a prisoner, may subject a municipality to liability under §1983.

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Medical Marijuana and the Hiring Process

Medical Marijuana and the Hiring Process

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?

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Medical Marijuana and Drug Testing

Medical Marijuana and Drug Testing

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?

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Medical Marijuana and Discipline

Medical Marijuana and Discipline

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.

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Medical Marijuana, Garrity and the 5th Amendment

Medical Marijuana, Garrity and the 5th Amendment

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.

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Why is a $1,000,000 Per Occurrence Policy Limit Enough?

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.

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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.

 

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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.

Introduction

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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