Public Risk November/December 2022

Active Shooter: Prevention and Preparedness

Shots fired! The specter of an active shooter incident is one of the top issues that causes administrators to lose sleep. Years ago, schools adopted lockdown procedures designed to delay the shooter’s access to students and staff until law enforcement officers could affect the situation. In response to more recent incidents, this session will bring attendees up-to-date on pertinent developments regarding active shooter preparedness. ATTENDEE TAKEAWAYS:

Attendees will receive helpful web-based resources

Attendees will be informed about specific and current active shooter protocols

SPEAKER: Paul Timm, PSP, Vice President, Facility Engineering Associates, P.C.

CONTENTS

By John Roy

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

PRESIDENT Scott J. Kramer, MBA, ARM

County Administrator Autauga County Commission Prattville, AL

PAST PRESIDENT Melissa R. Steger, MPA, CRM Asst. Dir., WCI & Unemployment Ins. University of Texas System Austin, TX

PRESIDENT-ELECT

Laurie T. Olson

Sr. Risk Management Consultant City/County Insurance Services Salem, OR

DIRECTORS

Sean Barham, MBA, ARM

Executive Director of Human Resources

Las Cruces Public Schools

Las Cruces, NM

Dana S. Henderson, CWCP Risk Manager

Town of Mount Pleasant Mount Pleasant, SC

Jennifer Hood Safety & Risk Director

Montgomery County Government Clarksville, TN

Steve M. LePock, II Risk Manager

Virginia Beach City Public Schools Virginia Beach, VA

Adam F. Maxwell, CLRP Director, Administrative Services City of Westerville Westerville, OH

Ann-Marie A. Sharpe, ARM, RMPE Director, Risk Management City of Miami Miami, FL

NON-VOTING DIRECTOR

Jennifer Ackerman, CAE Chief Executive Officer

Public Risk Management Association Alexandria, VA

EDITOR Jennifer Ackerman, CAE 703-253-1267 jackerman@primacentral.org

ADVERTISING

Jennifer Ackerman, CAE 703-253-1267 jackerman@primacentral.org

Public Risk is published 6 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org

Opinions and ideas expressed are not necessarily representative of the policies of PRIMA.

Subscription rate: $140 per year.

Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine.

POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314.

Copyright 2022 Public Risk Management Association

Effectiveness of Committees

One of the many challenges a risk manager experiences is a lack of resources necessary to accomplish a goal. Some risk managers do not have the staff to get the job done. I have found that a committee can assist with dispersing the workload and receiving “buy-in” from multiple departments. The committee must understand strategic goals and why they were chosen specifi cally to participate.

A few years ago, when obesity was identified as a health concern in my state, a state grant was offered to motivate employees to incorporate habits resulting in a more active lifestyle. Incentives such as water bottles, gym bags, pedometers, and t-shirts were promoted. I made sure our County took advantage of this grant opportunity, anticipating 20-30% participation rate. Much to my surprise, 70% of our workforce participated! This event gave me perspective to offer other wellness programs, including exercise classes with a professional trainer and at-work Weight Watchers classes. This level of participation also solidified my vision of establishing an on-site clinic.

With the potential expenses and risk involved with an on-site clinic, I decided to form a committee comprised of employees from various departments and from varying levels of the workforce. These dedicated committee members made site visits to existing on-site

clinics, and worked through many in-depth conversations. Ultimately, there was unanimous support to move forward. The committee realized the potential for health improvement of employees and their families and reduction in healthcare expenses, both for the employer and the employees.

The committee’s decision proved to be a good one. Many employees felt the on-site clinic was the best benefit offered to employees. Over a 7-year period, our overall healthcare costs, including the cost of the on-site clinic averaged an approximate increase of 1% annually. The committee took ownership of the on-site clinic concept. They were great ambassadors for clinic utilization. They were a great sounding board in making this idea become a reality. It also

gave the committee a new sense of purpose in participating and implementing this innova tive concept.

Sincerely, Scott J. Kramer, MBA, ARM

PRIMA President 2022–2023 County Administrator Autauga County Commission Prattville, AL

Many employees felt the on-site clinic was the best benefit offered to employees. Over a 7-year period, our overall healthcare costs, including the cost of the on-site clinic averaged an approximate increase of 1% annually.

The committee took ownership of the on-site clinic concept. They were great ambassadors for clinic utilization.

“ “

"It is amazing what you can accomplish if you do not care who gets the credit.”

Harry S. Truman

NEWS Briefs

E-BIKES GAIN MOMENTUM AS A CLIMATE, TRAFFIC SOLUTION

In the quest to electrify the transportation sector, some state and city leaders see the future arriving not on four wheels, but on two.

As electric bicycles, or e-bikes, grow in popularity, enthusiasts increasingly see them as a tool to reduce auto traffic and air pollution, not just as a fun new toy. States, cities and utilities have begun offering vouchers or rebates to help residents buy e-bikes. Some places are pairing such programs with a renewed effort to expand bike lanes and connect cycling corridors. That switch, leaders say, is cheaper, faster to implement and requires fewer resources for manufacturing and charging than electric cars need.

E-bikes have pedals but use an electric motor to help riders accelerate, maintain speed and climb hills. That makes them easier to use than traditional bicycles, especially in hilly areas and for riders who might not want the intense workout of biking to work or other errands.

Anissa Teslow, a resident of Benton County, Oregon, bought an e-bike with the help of a local rebate program earlier this year. Teslow has a disability that makes riding a conventional bike impossible at times. She said she now uses the e-bike for many short errands, allowing her to maintain a more active lifestyle and join in social outings with friends, improving her mental health.

“An e-bike allows me to ride and have fun and use a different pedal assist based on how much help I need,” she said. “I’d like to help people with physical challenges think they could be more active by getting an e-bike too. I was outside more this summer than any other summer.”

Many leaders believe stories like Teslow’s show how transformative e-bikes can be.

“An e-bike can take you much farther, much faster and much more comfortably than ever before,” said Hawaii state Sen. Chris Lee, a Democrat who chairs the Transportation Committee and sponsored a bill to create a rebate program for e-bike purchases. “It’s a new means of commuting that’s never existed before in terms of range and price.”

Nearly 60% of trips in privately owned vehicles are less than 6 miles, according to 2017 data from the Federal Highway Administration.

Advocates see a huge opportunity for e-bikes to become the workhorse for those short outings. Cargo bicycles can haul groceries or carry kids to school. Motorized support can help commuters bike to work without getting drenched in sweat.

E-bikes also can make cycling an option for people with health issues or disabilities, older residents or people with “exercise anxiety” who may not otherwise be confident relying on a bike for transportation.

E-bikes have pedals but use an electric motor to help riders accelerate, maintain speed and climb hills. That makes them easier to use than traditional bicycles, especially in hilly areas and for riders who might not want the intense workout of biking to work or other errands.

HOW TO MAKE BROADBAND A PRIORITY IN AFFORDABLE RENTAL HOUSING DEVELOPMENT

CLEVELAND HOPES TO CRACK DOWN ON ILLEGAL DUMPING WITH AI

The city of Cleveland will work with Case Western Reserve University and Cleveland State University on a solution for illegal dumping that’s powered by artificial intelligence.

Many residents of affordable rental housing nationwide continue to lack access to broadband in their homes, but effective use of a long-standing federal tax credit can help close the gap in those housing units not funded by the U.S. Department of Housing and Urban Development (HUD).

Recognizing the critical importance of high-speed internet access, a HUD rule effective since 2017 requires that broadband infrastructure be installed in new and rehabilitated federally assisted multifamily housing. This rule is an important step toward improving broadband access for households in affordable rental housing, but HUD-funded units represent only a fraction of new afford able housing.

The Low-Income Housing Tax Credit (LIHTC), launched in 1986, offers a path to help ensure access elsewhere. The tax credit is the primary source of affordable rental housing production in the United States today, however the total availability of competitive LIHTCs is limited; the IRS allocates them annually to states based on a formula and the level of congressional appropriations. State housing agencies then distribute the credits to eligible projects through a competitive process. Each state defines its priorities and scoring criteria through what is known as a qualified alloca tion plan (QAP).

States set threshold requirements for new developments, and then identify additional priorities through a scoring system in the states’ QAPs. For example, Massachusetts awards additional points for climate resilient design, while Delaware has incentives to include private outdoor space for each unit. The process for allocating these credits is

highly competitive. Although the total points scale varies by state, developers have a strong incentive to score as many points as possible because of the number of projects seeking credits. Therefore, QAP requirements heavily influence what affordable rental housing gets built and that means this process presents an opportunity to address broadband needs.

Many states include broadband and digital literacy incentives in their QAPs, though the specifics vary. Among the approaches are incentives for in-unit wiring, provision of ongoing service, common area access (such as computer labs for residents), or digital skills trainings. These features can be requirements for new LIHTC developments or encour aged by providing additional points in the plan calculations.

Some states incentivize broadband access in community areas or dedicated computer labs for residents. For example, Georgia mandates that applicants provide free high-speed Wi-Fi internet access in the required community room or building, while New Hampshire encourages this feature by adding points for the inclusion of free password-protected Wi-Fi in community rooms. When it comes to incentives for computer labs, states have varying equipment requirements based on number of units. For example, Idaho offers points for providing a “computer/study room” with high-speed internet access with at least one computer per 15 units.

States take different approaches as well to in-unit broadband access. In recent years, many updated their QAPs to include points for building broadband infrastructure into all new construction, reflecting that broadband has become an essential service for homes.

The end product will ideally provide new city-owned technology that Cleveland could use to identify people responsible for dumping, according to Roy Fernando, chief innovation and technology officer under Mayor Justin Bibb, who has promised to use technology to improve city services.

Cleveland City Council approved legislation allowing students and faculty, who are part of the two universities’ Internet of Things Collaborative, to commence work. It was one of two initiatives approved this week that is intended to bring “smart” technology to city devices and operations.

Students and staff will use smart cameras to develop and test an AI model designed to identify illegal dumping. Such work would be performed in a controlled-environment, likely on-campus, “where students will walk into the field of view of a monitor” and leave an item behind, Fernando said.

Once the model has been tweaked and perfected, it would be able to identify that person as having illegally dumped the item on the ground, Fernando said.

Then, the city intends to deploy smart cameras outfitted with the new technology on two corridors known for being dumping hotspots. One would be deployed on the city’s East Side, and one on the West Side, Fernando said.

Once someone dumps an item and the AI model detects it, it would automatically alert authorities, so they could investigate and potentially ticket whoever’s responsible.

If the test projects are successful, the technology could then be scaled-up for use elsewhere in Cleveland. The technology could also serve as a guide, of sorts, for creating different smart-city solutions for other problems, Fernando said.

BY JOHN ROY

AUTOMOBILE CRASHES ACCOUNT FOR ROUGHLY ONE-THIRD

of all public entity liability claims. Even though the damage to automobiles and people is generally covered by insurance, costs such as those associated with down time, retraining, and dealing with lawyers generally is not. The Occupational Health and Safety Administration (OSHA) reports that the average automobile crash can cost an employer approximately $16,500. When the on-the-job crash results in injury, the figure jumps to $74,000.

Not surprisingly, those who drive the most for public entities – law enforcement and public works personnel – are involved in the most crashes, but when replacement costs are especially high, such as in the case of a totaled $500,000 fire truck, just one crash can break the budget. And considering it can take up to 36 months to replace a fire truck, the consequences of a fire truck loss can exceed the financial cost. (See the Direct and Indirect Costs sidebar.)

To reduce vehicle claims and losses, depart ment leaders need to help employees become more invested in their on-the-job driving habits and implement safety protocols.

Here are five no-cost ways to reduce losses and claims (plus one that is likely free — or at least, low cost):

1. MAKE DRIVING A PART OF PERFORMANCE REVIEWS.

When employees know that their driving is being critiqued, they are more likely to do a better job. A good performance review equals a better chance at a raise, and therefore, they have a financial incentive to pay more attention while driving.

Zero crashes should be the expectation. Employees should not “exceed expectations” simply because they didn’t damage a vehicle in the previous 12 months. Likewise, anyone who was seen not wearing a seat belt, not coming to a complete stop at a stop sign, or using a cell phone should not “meet expecta tions.” Set a culture that safe driving every time is considered standard behavior, not above average.

2. USE A PRE-TRIP INSPECTION CHECKLIST TO ENSURE VEHICLES

ARE SAFE TO DRIVE. Before taking off, airline pilots perform a preflight inspection, a walk around the aircraft, to check that the plane is safe.

Public entity fleet management protocol should include a pre-trip inspection of the vehicle by the driver. It should include an inspection of tire tread and air pressure, headlights, taillights, turn signals, brake lights, windshield fluid and other observable mechanical functions. Each vehicle should have a maintenance log that can be easily checked to ensure brakes, steering, fluid levels, etc. are regularly maintained. Additionally, when the vehicle is returned, there should be a log for the driver to confirm there were no operation issues or report any concerns.

3. FORMALLY REVIEW AND DOCUMENT ALL CRASHES, EVEN IF THEY ARE MINOR.

The practice of formally reviewing crashes should be applied to all entity departments. While not every scratch and dent will require a full investigation, at a minimum, all damage

WAYS TO HELP REDUCE VEHICLE CLAIMS AND LOSSES

should be reviewed by a supervisor. It is likely that minor dings and scratches resulted from driver inattention. Having employees explain how the damage occurred, and what could have been done to prevent it, emphasizes the entity’s commitment to reducing auto liability.

Additionally, it may lead to a change in procedure or the layout of the shop. If the dent or ding was caused by tight quarters, changing the layout or simply moving a piece of equipment may reduce the risk of that type of damage.

All crashes involving a third party should receive a formal review. This should be for both crashes involving bodily injury and property damage. The review should include inspecting and photographing the vehicle (even if there is no apparent damage to the insured’s vehicle) and a review of the driver’s employment history, training and driving records. A formal review of these crashes will help determine the root cause and what corrective action may be necessary. Reviewed records should be retained to assist with preserving evidence, and if necessary, to assist with claim resolution, especially if litigation ensues.

4. MAKE SURE THE DRIVER IS FAMILIAR WITH THE VEHICLE BEFORE DRIVING IT.

Vehicle interiors and instrument control panels differ. Just as drivers should not take their eyes off the road to look at a text message, they should not be distracted by searching for vehicle controls. Driving in the rain is not the time to try and locate the windshield wiper control.

Police, fire and public works personnel operate specialty vehicles with a variety of functions and apparatus. Entities need to provide new employees comprehensive vehicle use training and provide all employees regular refresher training. Employees must be able to demon strate knowledge of the location and proper use of vehicle controls before being allowed to operate the vehicles.

5. DETERMINE WHERE AND HOW CRASHES OCCUR AND LOOK FOR TRENDS.

Public entity fleet management protocol should include a pre-trip inspection of the vehicle by the driver. It should include an inspection of tire tread and air pressure, headlights, taillights, turn signals, brake lights, windshield fluid and other observable mechanical functions. Each vehicle should have a maintenance log that can be easily checked to ensure brakes, steering, fluid levels, etc. are regularly maintained.

Note the location of vehicle crashes and when they occur in the same location, change procedures to reduce risk, when possible. For example, if there have been multiple vehicle and deer crashes along a particular stretch of road, train employees to slow down and exercise caution when driving in that area. Similarly, if snowplow drivers routinely hit the same mailboxes while making a tight turn, consider a route change that has snowplows travel in the opposite direction.

Public entities should also analyze how crashes are occurring and adjust procedures to minimize risk. For example, if the data indicates increases in crashes occurring while drivers are backing up, the entity could retrain them on safe back-up procedures. If multiple drivers have been involved in rear-end crashes, hold training on the importance of driving at safe distances and speeds.

And here is the sixth (and likely free) strategy to reduce vehicle losses and claims.

6. SET A STANDARD OF WHO IS ALLOWED TO DRIVE YOUR VEHICLES.

It should be standard practice to obtain the motor vehicle record (MVR) of job candidates applying for positions requiring driving and of current employees who drive regularly for their job prior to their annual performance review.

In most states, there is no cost to public entities for an MVR. An MVR typically includes the person’s license class, current standing with driving authorities, license endorsements and restrictions, suspensions and expirations. It will also include infractions such as citations for speeding, moving traffic violations, and some criminal convictions involving driving.

A review of a potential employee’s MVR is helpful in determining if they might be a liability behind the wheel of an entity-owned vehicle. Current employees who understand that their MVR will be reviewed annually know that if their driving record is unsatisfac tory, they cannot drive for the organization and risk losing their job. Keep in mind that employer requests for individuals’ driving records must be related to the job and consent given for a background check.

Public entities should determine standard criteria for who they consider a safe driver. Deciding if an individual meets the criteria of a safe driver could include using the MVR to:

• Verify the driver’s license is in good standing and if applicable, includes any required license class or endorsement level

• Check for speeding tickets, moving traffic violations, vehicular crimes, and convictions of driving under the influence

By implementing these steps, public entities can reduce vehicle claims and losses; avoid medical costs, lost productivity, property damage and insurance premium increases; and help safeguard their employees, property and the public.

John Roy is Senior Risk Control Field Representa tive forvTokio Marine HCC – Public Risk Group.

in

As the technology landscape evolves, products and processes are becoming faster and more accessible. What about the partnerships to help secure our data in a continuously connected world? In this session, the presenter will discuss resources and human-centric focus on best practices for implementing public and private sector partnerships to mitigate the risk of cyber threats.

ATTENDEE TAKEAWAYS:

1. Learn how to identify key resources to address key issues

2. Learn best practices to facilitate public-private partnerships with regards to cybersecurity

SPEAKER: Kelvin Coleman, Partner, IBM Consulting

FIRST AMENDMENT WHEEL DOESN’T STOP SPINNING: What Risk Managers Need to Know for Dealing with Schools

BY: JEFFREY J. GROSHOLZ & LEONARD J. DIETZEN, III

THIS YEAR, A HEIGHTENED FOCUS has been placed on schools both nationally and at the local level. Schools are becoming the battlefield where some of the most high-profile cultural clashes occur, which means more legal developments affecting public education. Risk managers must navigate these decisions, understand what they mean, and ensure their schools and districts are in compliance when it comes to treating students, parents, and staff fairly. To that end, the most recent U.S. Supreme Court term saw significant changes regarding the First Amendment and its bearing on public spaces. Three decisions, in particular, have effects that schools will acutely feel.

RELIGIOUS EXPRESSION GENERALLY OKAY AS LONG AS IT IS NOT COERCIVE

In Kennedy v. Bremerton School District , a high school football coach claimed his First Amendment rights were violated because his school district did not allow him to engage in prayer at midfield after football games. While he sought only to pray alone, sometimes the coach’s athletes, and even athletes from opposing teams, would join him. Notably, the coach never required anyone to join him. Regardless, the district was concerned about observers who saw the coach praying and worried it would look like the district approved or endorsed this religious expression. Ultimately, the U.S. Supreme Court sided with the coach, finding that both the Free Speech and Free Exercise Clauses of the First Amendment protected his conduct. The Court also dismissed the school district’s concerns about any Establishment Clause violations.

SO WHAT DOES IT MEAN?

For starters, it means schools must be tolerant of staff who wish to engage in private prayer and not make any knee-jerk reactions for fear of being seen as endorsing religion. Free speech and free exercise rights do not stand in opposi tion to schools’ rights (and responsibilities) to avoid establishing or favoring a particular religion or religious activity. Thus, schools concerned about an act of religious expression should not ask whether allowing the religious conduct looks like the school is “endorsing” religion, since in Kennedy, the Court forcefully rejected any kind of “endorsement” test. Instead, evaluating religious expression must be done through the lens of historical practices and understandings: what was done in the past, how was it interpreted, and what was under stood to be acceptable? The country’s long history of tolerating and allowing particular private speech by public employees, including religious speech, means the school district in

Kennedy erred in prohibiting the coach from engaging in his sincerely held beliefs.

In practice, the chief goal of risk managers should be avoiding singling out individuals engaged in religious expression, especially if that religious activity is not coercive. Is the individual compelling others to participate in their expression? Or is it a private act of prayer or reflection? The former has been and still is prohibited. Had the coach in Kennedy demanded or required his players to join him while he prayed, it would have been a completely different scenario, and the Supreme Court almost certainly would have reached an opposite conclusion. However, because the student-athletes willingly chose to join him, his actions were therefore not coercive, and the school district should not have banned him from praying. Risk managers should also remember that even if allowing religious activity offends some observers, this alone does not create a problem. This, the Supreme Court found, would mean banning religious expres sion in preference to secular views. Generally speaking, permitting private speech, so long as it is not coercive, is acceptable.

RELIGIOUS SCHOOL VOUCHERS ARE A-OKAY

In Carson ex rel. O.C. v. Makin , the Supreme Court struck down Maine’s tuition assistance program because the program did not allow parents to use tuition vouchers at religious schools. This decision is a continuation of the Court’s recent precedents that when

the government offers a benefit, it cannot disqualify applicants just because they are religious.

SO WHAT DOES IT MEAN?

Day-to-day, Carson probably will not affect risk managers as much. States that have or are considering tuition voucher programs will need to ensure that they are in compliance.

As for states whose programs already allow religious schools to receive such vouchers, they needn’t worry. But at the school district level, it means that for widely offered programs—e.g., allowing groups to offer a prayer before a school board meeting or renting out school facilities for private use on the weekend—they must be as impartial as possible in deciding who may participate. Turning away individuals seeking a benefit offered to all simply because they are religious (or potentially affiliated with a group considered undesirable) is generally impermissible.

PROGRAMS THAT EXCLUDE RELIGIOUS GROUPS ARE A NO-GO

While Shurtleff v. City of Boston did not involve a school—rather, it dealt with Boston’s City Hall—its impact extends to schools nonethe less. That’s because the U.S. Supreme Court reiterated that when the government (including public schools) permits private individuals to participate in public programs, it cannot exclude a would-be participant solely because of their religious affiliation. Here, the Court found Boston’s program of allowing private

groups to raise flags outside of city hall could not exclude a religious organization that asked to fly their Christian flag, especially when the city had allowed other prospective groups to raise their respective flags and never denied another applicant.

SO WHAT DOES IT MEAN?

Like Makin , this is another reminder that public entities cannot exclude individuals just because they have religious affiliations. Another takeaway is that clear policies serve as solid protection against claims of arbitrary or unfair discrimination. Namely, for any programs that could be seen as implicating a school’s “speech”—e.g., raising flags or broadcasting messages over loudspeakers— clear parameters about the school’s level of involvement and degree of control over the speech can prevent would-be participants from claiming unfair exclusion.

Boston’s flag-flying program had no official written policies and had no meaningful involvement in selecting the flags that would be raised; instead, it embraced a “come-onecome-all” attitude. This meant the Supreme Court did not buy the city’s arguments that it sought to control the message being sent by these flags. By opening the program up to all applicants—and by never denying any until a religious organization sought to participate— the city ceded control over the message. Risk managers should be mindful of any school programs that similarly relinquish control to private individuals and consider the messages sent by these programs.

WHAT’S NEXT?

If the above seems like a lot to digest, unfortunately the carousel of school-focused litigation does not look like it is slowing down anytime soon.

Currently, the Court of Appeals for the Eleventh Circuit is weighing whether to affirm a lower court ruling that required a Jacksonville, Florida school district to allow a male transgender student use the restroom that matches his preferred gender.1 Whichever way the court goes, while its decision will only be binding on Alabama, Florida, and Georgia, it will nonetheless have nationwide effects as

Education is a field where the law never stops changing. Recent history shows this trend is likely not slowing down; if anything, it will only increase as courts show a greater willingness to revisit previous decisions, reinterpret longstanding practices, and closely scrutinize new legislation. In the wake of this shifting landscape, the best advice we can offer is that actions taken in haste rarely end well.

more lawsuits are launched by transgender students who see bathroom restrictions as violating their rights, and courts elsewhere look for decisions interpreting equal protection laws.

The Eleventh Circuit is also considering an appeal by a Christian school arguing its First Amendment rights were violated when it was not allowed to pray over the stadium loudspeaker before a championship football game.2 This case could end up before the U.S. Supreme Court since a decision in the school’s favor may conflict with previous Supreme Court rulings that found similar conduct violated the Establishment Clause.3 If the school gets its way, religious institutions will likely increasingly request the opportunity to pray before athletic competitions and districts would probably be wise to grant those requests, lest they get haled into court.

Head spinning yet? There’s more. Let’s step outside schools for other litigation brewing that risk managers should be watching. In mid-August, the Court of Appeals for the Fourth Circuit (which covers Maryland, North Carolina, South Carolina, Virginia, West Virginia, and federal administrative agencies) found that gender dysphoria is a qualifying disability under the Americans with Disabilities Act (ADA) in a case by a female transgender inmate challenging her placement in a men’s prison.4 Again, while this decision is technically only binding on those states and agencies, its practical impact means individuals could argue their transgender identity is an ADA disability in lawsuits nationwide. Schools whose employees claim that they are being denied accommodations because of their gender dysphoria may end up defending a disability discrimination lawsuit.

In mid-August, a federal district court in north Florida blocked part of the “Stop WOKE” Act from going into effect.5 Private employers and HR training consultants argued that the law violated their First Amendment rights to engage in open and free exchanges with employees. The court, in turn, blocked those portions of the law that restricted how employers can and cannot discuss race and sex during HR training. While the Florida govern ment has signaled it will appeal this decision,

interim rulings such as these are helpful guidance for schools and HR staff in shaping training for new employees in light of similar legislation popping up across the country.

BEST PRACTICES IN A SHIFTING LANDSCAPE

Education is a field where the law never stops changing. Recent history shows this trend is likely not slowing down; if anything, it will only increase as courts show a greater willing ness to revisit previous decisions, reinterpret longstanding practices, and closely scrutinize new legislation. In the wake of this shifting landscape, the best advice we can offer is that actions taken in haste rarely end well. If you or your colleagues are concerned about an employee or student’s actions and are worried about how to deal with them, it is best practice to consult with your school district’s attorney or outside counsel before making a decision that could result in a lawsuit. Students, parents, and school staff are only growing in awareness of their rights and demonstrating a greater willingness than ever before to flex those rights. Remaining vigilant in the face of this will help risk managers reduce their school’s liability and prevent unnecessary litigation.

Jeffrey J. Grosholz is an associate attorney in RumbergerKirk’s Tallahassee office concentrating his practice in constitutional and employment litigation. He defends state and local government agencies and law enforcement officers against allegations of civil rights and tort violations and also represents employers in the private and public sectors in matters involving employment and labor issues.

Leonard J. Dietzen, III is the administrative partner in RumbergerKirk’s Tallahassee office. He concentrates his practice on collective bargaining, education law, labor issues for school boards and all aspects of employment law for both private and public sector employers.

1 See Adams v. Sch. Bd. of St. Johns Cnty., 9 F.4th 1369, 1372 (11th Cir. 2021).

2 See Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, Inc., No. 22-11222 (11th Cir. appeal filed Apr. 15, 2022).

3 See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

4 See Williams v. Kincaid, No. 21-2030, --- F.4th ----, 2022 WL 3364824 (4th Cir. Aug. 16, 2022).

5 See Honeyfund.com, Inc. v. DeSantis, No. 4:22cv227-MW/MAF, --- F. Supp. 3d ----, 2022 WL 3486962 (N.D. Fla. Aug. 18, 2022).

THE IMPACT OF RESILIENCE ON RECOVERY FROM INJURY OR ILLNESS

BY TAMMY BRADLY

No one is without misfortune and setbacks in life, but one could argue that some face more challenges than others. Take the beloved Peanuts character, Charlie Brown. Charlie’s life is filled with constant defeat, yet he keeps forging ahead, and even celebrates the occasional “win.”

This motivation to push forward in the face of adversity can be identified as resilience, the ability to adapt to life’s misfortunes and setbacks. Resilience is an “inner strength” that helps us bounce back after stressful situations. It is how we weather traumatic impacts while continuing to function both mentally and physically. Resilient individuals are not void of anger, grief, or pain. They simply find the strength from within, and from their social support, to forge ahead.

Being resilient can lead to a quicker recovery from difficult situations, including illness and injury. This does not mean it is worry-free when the going gets tough, however resilience does not let these situations overwhelm us. Helping an injured employee build resilience is a crucial element of the case management process. To accomplish this, we must have a deeper understanding of the injured employee’s journey that encompasses not just the injury itself but also social determinants that further impact recovery and return to work.

MIND-BODY CONNECTION

Our minds can have a positive or negative effect on our bodies. This linkage is referred to as the mind-body connection. How we think can affect how we feel and how we feel can affect our thinking. Moving from negative to positive thoughts helps the brain produce chemicals that can:

• Lower blood pressure

• Reduce risk of heart disease

• Lower stress level and decrease anxiety

• Lessen stomach problems

• Improve sleep

• Diminish back pain

• Heighten happiness and optimism

A key component of resilience is optimism, a hopeful, positive outlook on the future and the world around us. Even if a “glass half empty” person can practice “realistic optimism.” Realistic optimism does not mean you expect the best and hope things go your way, instead, it allows you to see the

“big picture” — both good and bad — and determine realistic expectations, what you can do to make things go well, and choose to focus on your strengths and positives of the situation.

RESILIENCE IS PERSONAL

Resilience comes from our life passions and the purpose we derive from events, experiences, beliefs, and values. In an article published by the American Psychological Association, it is stated that resilience isn’t necessarily a personality trait that only some possess. The authors write, “On the contrary, resilience involves behaviors, thoughts, and actions that anyone can learn and develop. The ability to learn resilience is one reason research has shown that resilience is ordinary, not extraordinary.” Most would agree the quest to build and strengthen one’s resilience is a lifelong process. Here we will attempt to simplify resilience building into three overarching categories.

RESILIENCE BUILDING

Healthy Body

• Focus on Nutrition

• Routinely exercise

• Get sufficient sleep

• Stay Hydrated

• Avoid alcohol and drugs

Healthy Life

• Stay connected with family

• Have a social network

• Focus on connections who are empathetic, trustworthy, and compassionate and good for you

• Join groups with common goals – support groups, church, or civic groups

• Give back to the community

• Lean on your support system

Healthy Mind

• Find the positive

• Believe in yourself

• Accept change

• Have an optimistic outlook

• Be thankful for the good things

• Practice mindfulness

• Explore your thoughts and feelings

• Set realistic goals

• Get help from a mental health professional if you need it

THE IMPACT OF RESILIENCE ON RECOVERY FROM INJURY OR ILLNESS

RESILIENCE AND INJURY RECOVERY

Injury or illness, whether occupational or other, affects everyone differently and brings about strong emotions, thoughts, and uncertainty. Being resilient or able to “bounce back” helps us get through the situation and empowers us to grow along the way. How often have we said in our industry the injured employee is not “motivated” to return to work? That is typically considered a “red flag” and indication that the claim will not likely resolve in a timely manner. A better way to describe the situation is the injured employee simply does not possess the resilience tools needed to work through the biopsychosocial issues surrounding the injury. The injury can bring on stress and other psychological effects over a myriad of concerns including finances, employment outlook, fear of not achieving full recovery, or lack of trust in “the system,” among others.

ATHLETES AND INJURED EMPLOYEE COMMONALITIES

You may not realize it, but injured employees are not unlike injured athletes. They often have access to the same physicians and share similar concerns around their ability to rebound from an injury. The Athlete Crisis Model shows us how a person’s mental state has a significant effect on our motivation and physical wellbeing, including injury recovery. Specifi cally, this theory speaks to the fact that athletes with low levels of resilience are at a higher risk of slow recovery, re-injury, performance slumps and even mental health issues.

As with athletes, for injured employees to achieve the best possible outcome or “peak recovery” we must address both physical and psychosocial effects of the injury. Case managers can promote this by:

• Providing coaching and education around the injury, treatment, and recovery

• Helping injured employees understand that their feelings are normal reactions to the injury

• Supporting injured employees as they work through the process

• Offering tools and techniques to help build a resilient mindset

MANAGING THE JOURNEY TO RECOVERY

The case manager’s goal is to assist the injured employee is working from their “peak recovery mindset.” Without intervention and lacking resilience, the injured employee can experience delayed recovery, both physically and mentally.

Encouraging injured employees to visualize optimal results of recovery, and teaching practices that build resilience such as becoming active and strong, engaging in enjoyable activities, and staying connected, all contribute to a more optimistic view of rehabilitation and the prescribed treatment plan, which can lead to better outcomes.

Tammy Bradly is senior director of clinical product marketing for Enlyte.

ADDITIONAL RESOURCES: https://www.forbes.com/sites/ brentgleeson/2020/06/30/7-secretsyou-need-to-know-for-buildingresilience/?sh=6efb0d4b7f84 https://www.psychologytoday.com/us/blog/ your-awesome-career/201907/mentoring-thesecret-building-resilience

https://www.apa.org/topics/resilience https://summitperformancepsych.com/ mental-health-after-injury/  https://www.health.harvard.edu/mind-andmood/ramp-up-your-resilience

Join AMY LARSON for an informative discussion on how to safely manage special events in your community. Community special events serve several functions within a municipality: they enrich the lives of a community, attract interest in local businesses, increase sales tax revenue and sometimes tax the patience of the government as it serves and protects. Special events provide a framework for successful partnerships between event organizers, government, local businesses and the community at large. This edition of Let's Talk Tuesday will explore methods to minimize risk at special events such as road races, parades, air shows, regattas, petting zoos, beer gardens, farmers markets, and more.

CALENDAR OF EVENTS

PRIMA’s calendar of events is current at time of publication. For the most up-to-date schedule, visit www. primacentral.org.

PRIMA ANNUAL CONFERENCES

June 4–7, 2023

PRIMA 2023 ANNUAL CONFERENCE Long Beach, California Long Beach Convention Center

June 16–19, 2024

PRIMA 2024 ANNUAL CONFERENCE Nashville, Tennessee Gaylord Opryland Hotel

June 1–4, 2025

PRIMA 2025 ANNUAL CONFERENCE Seattle, WA Washington State Convention Center

PRIMA WEBINARS

November 16

Active Shooter: Prevention and Preparedness

December 14 The Power of Partnerships in a Continuously Connected World

PRIMA INSTITUTE

October 16–20, 2023 New Orleans