Alcohol and employees: Risks and responsibilities
Lauren M Bernardi
Many employers serve alcohol to their staff at a variety of events ranging from holiday parties to summer picnics or team celebrations. Usually these events are quite festive and enjoyable but there is often at least one employee who drinks too much. The results of this excessive consumption range from inappropriate behaviour to drunk driving in which the employee injures him or herself or others.
To help curb the dangers of drinking and driving the courts have placed increasingly greater responsibility on employers and their managers to prevent intoxicated employees from driving home.
The following two case studies illustrate the kind of responsibility employers and managers face when dealing with intoxicated employees.
Nike and The Trade Show
In 1991, Michael Jacobsen, a warehouse employee of Nike Canada Ltd. was required to work at a trade show and to bring his car to do so. He worked for 16 hours in one day preparing for the show.
At about 7:00 p.m., Jacobsen’s manager brought a case of beer and some pop and chips to the worksite. By the time Jacobsen finished his shift at 11:30 p.m., he had consumed eight bottles of beer and was intoxicated.
After his shift, Jacobsen walked to two different bars and drank for another two hours. He then got into his car and, while driving home, got into an accident rendering him an incomplete quadraplegic.
Jacobsen sued Nike for negligence and won. The court held Nike responsible because it had (through its manager) brought alcohol into the workplace and hadn’t offered an alternative means home. The court said that, in essence, drinking and driving had become a condition of Jacobsen’s employment.
Nike was also deemed to have known how much Jacobsen had consumed, since 24 bottles of beer were supplied to only five people.
Jacobsen was held only 25% at fault for the accident. Nike was assigned 75% of the blame because Jacobsen was required to bring his car to work and had no choice but to drive home.
Sutton Group and the Christmas party
It was all over the news “employer ordered to pay $300,000 to drunk employee” and it sent shockwaves through many organizations.
The case involved Linda Hunt, a receptionist who worked at a Sutton Group Realty Ltd. office in Barrie, ON. In 1994, the office held a Christmas party. The event took place at the office during business hours. The employer supplied the food and alcoholic beverages.
Throughout the party, Hunt remained on duty and continued to answer the telephones. She was also required to clean up when the party ended. This took matters beyond the usual social host situation.
At some point during the party, the president noticed that Hunt was becoming intoxicated and offered to either call her husband to pick her up or send her home in a cab.
Hunt declined both offers and, along with several co-workers, left the party and went to a nearby tavern. While she was at the party, she consumed at least one if not two more drinks.
Shortly before 10 p.m., while driving home in a snowstorm, she side– swiped a pickup and suffered extensive injuries.
Hunt later sued her employer for allowing her to drive drunk and won. She was held 75% responsible for the accident while Sutton and the tavern owner (which closed for financial reasons and was dropped from the action) were held jointly responsible for the remaining 25%.
What separates this case from the earlier Nike case is the standard of care the court imposed on the employer.
The court said it wasn’t enough to ask the employee if she was okay and offer an alternative means home. The court relied on a toxicology expert who said “the very worst person to ask for guidance in such circumstances is the drunk person herself’ The court stated that the employer needed to do more, including physically removing Hunt’s keys from her possession, forcing her to take a cab or even calling the police. The court gave short shrift to the employer’s argument that taking her keys would constitute theft and forcing her into a cab was tantamount to kidnapping. The court said the employer had “a duty to personally intervene and prevent an intoxicated employee from driving home” and that Hunt would have acquiesced if the employer had been more forceful.
Taking preventative action
So what does this mean for you? Well, obviously great care must be taken when it comes to allowing employees to drink, particularly when they are on duty. In fact, drinking on company premises while on duty should be prohibited altogether.
In addition, at social events:
do not provide an open, unsupervised bar; use a bartender
limit the number of drinks you offer employees to no more than one per hour or offer a cash bar instruct the bartender to keep an eye on staff to ensure no one becomes drunk and make sure you do the same
provide employees with an alternative means home (e.g. a cab) and insist they take it; if they insist on driving, call the police
remind employees of the dangers of drinking and driving before, during and at the end of the event
you could ask employees to sign a release and waiver before the party, although such a move might put a damper on the festivities or cause some people to avoid the event altogether.
Although the cases illustrated here deal with alcohol consumed while at work or company sponsored social events, the same rules hold true if an employee arrives at work intoxicated. That is, he or she should not be allowed to work and should be driven home or sent home in a cab. This will help meet your duty and can prevent someone from being injured either at work or on the way home.
By Lauren M. Bernardi Bernardi Stewart Scholz Human Resource Law
Lauren M. Bernardi is a lawyer and human resource advisor with the firm of Bernardi Stewart Scholz. Lauren’s advisory, training and educational services help managers direct their human resources in a strategically sound and legally appropriate manner. She is an accomplished and entertaining speaker on management and human resource issues. For more information, you may reach Ms. Bernardi at 905-274-2305 or by e-mail at email@example.com or on the web at www.bestlaw.ca
Copyright Canadian Institute of Management Summer 2001
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