Risk Control Newsletter – March 2021March 15, 2021
In This Issue
- C.A.L.M. Approach: Bringing Medical Science to Police Response
- Vaccines: A Couple of Considerations
- 2021 Employment Practices Update
- Road Defect Claims Are Preventable with Proper Administrative Procedures
- Did you Know?
With police reform efforts being kicked into high gear, Rick Smith, a former United States Marine and 27-year veteran of San Antonio’s Police Department whose specialties included Tactical Response and Special Operations, developed the C.A.L.M. Approach™, an innovative training curriculum that supports officers during an open, empty-handed force encounter. C.A.L.M. incorporates four basic principles: Communication, Active Physical Control Maneuvers, Lateral Recovery Restraint™, and Minimization. This methodology also:
- Instructs officers to de-escalate properly using innovative strategies,
- Provides improved communication approaches,
- Includes mental health considerations of the officer and detainee (alcohol/drug use, sleep deprivation, stress, etc.) and strategies for dealing with them,
- Discusses inward communication to de-escalate officers as well as outward communication to de-escalate suspects, and
- Allows for life-saving medical considerations.
After years of officers being taught certain restraint techniques, a sudden flurry of high-profile use of force cases has led many to pause and to look at these events more closely. Rick’s time on patrol coupled with his experience as a SWAT medic gave him insights as to why suspects end up critically or fatally injured during open, empty-handed force encounters. He tells us that often is the case where a suspect is fighting to breathe and not necessarily fighting the officer to get free. For a variety of reasons, the physical and emotional state of the suspect may lead a suspect to experience significant cardio-pulmonary trauma. When someone says, “I can’t breathe,” officers should take pause, as the suspect may be fighting for air and not necessarily the officer. To protect against this, it is recommended to use the Lateral Recovery Restraint (LRR) position. This process ensures officers do not put pressure on the critical areas that prevent breathing and allows officers to control the suspect. Officers must be trained to assess suspects for symptoms of compromised airway and be able to tell when a suspect in custody is decompensating so they can remedy the situation.
The C.A.L.M. Approach™ emphasizes that all responders have a role during the incident by using the Pit Crew Chief Method. The first officer who arrives on scene and is not needed to assist with controlling the subject will be designated the Pit Crew Chief. They are tasked with looking at the overall scene and suspect, assessing at the macro level, and having the ability to mandate correction. Pit Crew Chiefs are not emotionally invested so they can be more observant and make better decisions.
This training provides de-escalation tools to help officers minimize their own emotions as well as utilize effective communication strategies.
In the event the encounter is captured on video, whether dash/body cam or bystander, using the C.A.L.M. Approach™ provides video footage of officers showing appropriate care to a suspect. Trident supports the C.A.L.M. Approach™ and believes that departments adopting this approach have the potential to significantly reduce incidents that may give rise to liability exposures and improve their risk management. Click here for more information. Municipal Risk Managers and Police Chiefs interested in learning more about training details should contact us at firstname.lastname@example.org.
As we see vaccines get rolled out, we are also seeing some resistance to mandated vaccines. There is plenty of precedent allowing employers to mandate vaccines as employers have the responsibility to maintain a safe and healthful work environment for all employees. The EEOC has stated that there is nothing discriminatory about mandating vaccines. Employees refusing the vaccine can be prohibited from entering the workplace. However, if the employee refuses for reasons related to disability or sincerely held religious beliefs, the employer should have a dialogue about reasonable accommodations. It is not incumbent upon the employer to initiate discussions about accommodations associated with disability or religious beliefs. That duty belongs to the employee. Employers, however, must respond to requests appropriately.
Employers should maintain consistency in how they respond to refusals. Keep in mind, that there are several medical conditions (immune disorders, nervous disorders, etc.) that could be exacerbated by taking the vaccine and refusal on those grounds could be protected under disability requirements. Trident recommends that policyholders seek legal advice from local labor counsel for all employment decisions.
As many local governments are deciding whether to provide vaccines to the public, questions arise regarding insurance policies and liability. Any questions related to insurance policies and coverage should be addressed to your local agent or broker. Of course, all questions regarding liability exposure should be brought to local counsel.
Local governments may receive immunity related to administering vaccines. Under the Public Readiness and Emergency Preparedness (PREP) Act, covered persons are immune from liability for all claims related to the use of covered countermeasures. Local governments are considered covered persons under the classification of “program planners.” Covered countermeasures are qualified and approved pandemic medical products. If the local government has trained and qualified individuals administering the vaccines, and those individuals do not act recklessly, then immunity would apply.
Some states have passed laws allowing dentists and veterinarians to administer vaccines. As volunteers come forth to help it is important to ensure that they are qualified. The local government should have a medical professional that serves as the medical director that oversees the vaccination program. Volunteers would be working under the authority of that person. The medical director should ensure that all volunteers are adequately trained and perform the vaccinations in accordance with best practices.
For more information on the PREP Act Click Here.
As administrations change and laws are being revisited, there are a lot of questions as to what to expect and how to prepare. President Biden has named Commissioner Charlotte A. Burrows as Chair of the Equal Employment Opportunity Commission (EEOC). She has held this role since 2015 and says “The EEOC’s mission to advance equal opportunity for all in the workplace is particularly critical as we work to rebuild the American economy and address the challenges of systemic discrimination. I look forward to working with the President, my colleagues at the Commission, Congress, and the American people to ensure that everyone has a fair chance at success.”
It is anticipated that employment practices laws will focus on legal strategies to attain equality for sexual and gender minorities, with reviews and potential reversals of pending laws signed during the prior presidential administration. One such law addresses the collection of employees health data regarding voluntary wellness programs which involve reducing incentives to avoid employees feeling coerced to comply, to avoid penalties, and to comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Another law addresses the union "official time" rule to end the practice of paying federal workers who are union representatives for the work time they spend handling discrimination complaints. Additionally, the EEOC’s final rule on its voluntary conciliation program took effect on February 16. The program offers employers and employees an alternative to litigation for resolving workplace discrimination complaints, and the final rule provides more information to employers during the conciliation process.
Emerging concerns include COVID-19 concerning the ADA and the Rehabilitation Act. For the most updated information on this topic, please visit the EEOC at EEOC What You Should Know.
Currently, the most important focus for employers should be to do the right things: do everything that can reasonably be done to accommodate employees’ needs and address complaints, establish good policies, provide annual training to staff and management with documentation, ensure consistently applied practices, consult your Employment Practices Attorney where there is a question, and have good communication.
Workplace culture is particularly important in terms of morale, reducing claims, and increasing productivity. People should feel they can trust their employer to properly handle grievances, claims of harassment or discrimination, whistleblower activity, and other employment-related issues. Trident will soon be publishing an Employment Practices Manual, visit our online resources HERE.
Believe it or not, Spring is just around the corner! While that is good news, the bad news is that, with Spring comes pothole season. The Spring thaw and fluctuating temperatures will start to expose all the damage done by water getting into the cracks in the roadways and sidewalks. This of course, is nothing new for our public works crews who are used to ongoing road repairs and the headaches that Spring can bring with potholes. One factor that is not always taken into consideration is that as with any roadside maintenance, road defect related repairs are extremely dangerous. The more time our Public Works crews spend repairing roads, the more time they are at risk for injury by getting struck by a motorist. This along with the public safety risk for vehicle damage or accidents caused by road related defects should make this a priority for your municipality. Each municipality should have a Pavement Management Plan that involves inspecting your roadways, grading them on a scale, and prioritizing repairs and road replacement. Technology has come a long way in helping with this process. Infrared cameras can be used to evaluate the subsurface of roads that could be contributing to road defects and further enable you to prevent them.
From an insurance perspective road defect claims are generally preventable. Many states have caps that limit the damages paid on claims of road or sidewalk defects and specific guidance on method and timing of reporting defects. The law also typically allows a municipality a “reasonable” amount of time to repair road defects once notified. A reasonable amount of time is typically not a fixed duration and can vary depending on weather, public safety emergencies, traffic, location, etc. With these tort protections in place, it is critical for each municipality to have a consistent and effective means to receive, track, repair and monitor all road defects. If you have not already, now is the time to evaluate your current process and procedures. Consider the following:
If you lack a work order system for tracking road defects, implement one now. There are many very simple and low-cost systems that can be implemented quickly. If you do not have money in the budget for a formal work order program, then establish an email system strictly for reporting road defect claims. Post the email/work order link and instructions on your website home page, publish it through social media, mailers, electronic message boards, etc. Do what you can to get the word out. Our claims adjusters often hear from our policy holders that they had no prior notice of the problem that was reported. If you have a clear and consistent process, it will be easier to avoid incidents and defend against claims. Be sure to maintain a log that identifies the date, time, address, and the name of the person reporting the issue as well as the date and time of the repairs. Work order programs make tracking easy and can also assist with your Pavement Management Plan by examining roads with high reports of defects. Conduct quality control checks of your system throughout the year. Also, be sure that you communicate to your public works team and any administrative staff that could be receiving road defect claims over the phone that they should avoid attributing fault for the defect; this allows the insurance company adjuster to handle the facts of the claim. Support your public works crews by giving them the tools to manage the roads, which will hopefully require them to spend less time making repairs. For more information CLICK HERE.
Eating, drinking, and parading were the expectation on election day in early America. In Virginia, barrels of liquor would be rolled out to the courthouse lawn or polling place on this special day. During our nation’s infancy, votes were often conducted by public voice votes. Colored tickets (party tickets) were also used to publicly cast votes. It was not until the 1890’s that the secret ballot became commonly used in the United States.