Managing Liability: SAFETY AT HOLIDAY PARTIES

Transcription

1 Managing Liability: SAFETY AT HOLIDAY PARTIES

2 ALCOHOL: Managing the Risks of Liability HARASSMENT: Make Sure Employees Behave Themselves HOLIDAY PARTY SAFETY CHECKLIST

3 3 ALCOHOL: Managing the Risks of Liability During the holidays, many companies hold parties and often sell or provide alcohol at them. Although most individuals will drink responsibly, all it takes is one employee to get drunk and, say, fall and get injured or drive drunk and the company can face liability. That s why it s important to take certain steps in advance to ensure your holiday parties are safe and to minimize any liability risks. WHAT THE LAW SAYS Liability risks associated with holiday parties and any events at which alcohol is provided or served stem from a theory called host liability. The Supreme Court of Canada first applied the theory in a 1973 case in which a customer at a bar drank too much and got hit by a car while walking in the middle of the street on the way home. The customer sued the bar for serving him to the point of intoxication and letting him leave, knowing he couldn t properly care for himself. The Court found the bar liable for negligence. It said that bars, restaurants and other commercial establishments that serve alcohol have a duty to protect their patrons. They can t just serve customers until they get drunk and turn them loose on the streets [Jordan House Ltd. v. Menow, [1973] CanLII 16 (SCC), May 7, 1973]. In 1996, host liability was applied to employers in a BC case. A supervisor brought a cooler of beer to a crew erecting a trade show display on a hot day. One of the workers got noticeably drunk and drove into a ditch on the way home. As a result, he became a quadriplegic. He sued the company for his injuries. The court noted that the company, via the supervisor, had supplied the beer and knew the worker was drunk but didn t

4 4 10 Holiday Party Safety Tips The law firm Borden Ladner Gervais released a useful guide to planning a safe holiday party and avoiding liability risks that includes these 10 tips: 1. Consider whether the party should be alcohol-free. 2. If alcohol will be available, avoid open bars or unlimited alcohol. Instead, consider offering one or two drink tickets a person. 3. Ensure that alcohol consumption can be adequately monitored and limited and that no one is served to the point of intoxication. 4. Assign one or more management level persons to oversee the event. At the very least, a dedicated individual should stay sober and observe and assist employees and guests. (Here are Intoxication Monitoring Instructions you can give the designated monitors.) 5. Consider having the party during the day rather than in the late afternoon or evening as transit options may be more flexible and the party is less likely to spill over into a local bar. 6. Offer non-alcoholic beverages and plenty of food. 7. Offer cab chits, local hotel accommodations or some other method of ensuring that employees have safe transportation home. 8. Advertise alternate travel options in advance and discourage employees from bringing their cars to work on the day of the party. Consider ways to ensure that employees actually use alternate travel options, such as handing in car keys. 9. In the event that an employee becomes intoxicated, ensure that the employee doesn t drink and drive and can reach home safely. As necessary, involve the employee s family or local police to assist. 10. Keep work-related events short and offer activities beyond drinking. try to prevent him from driving home. So the company was found 75% responsible for the accident and was ordered to pay the injured worker $2.7 million in damages [Jacobsen v. Nike Canada, [1996] CanLII 3429 (BC SC), Feb. 22, 1996]. And the specific issue of an employer s liability as the host of a holiday party was addressed in another case from Ontario. A secretary got into a car accident after drinking wine at the company Christmas party. A court found the company 25% responsible for her injuries, explaining that it had a duty to protect the employee and letting her drive home drunk violated that duty [Hunt v. Sutton Group Incentive Realty Inc., [2001] CanLII (ON SC), Feb. 5, 2001]. Although an appeals court later reversed the decision on a technicality, it didn t say the lower court was wrong to hold the company liable. Under host liability, there are two kinds of hosts and the steps you take to manage that liability depend on the kind of host you are: Commercial hosts. This group includes bars, clubs, restaurants and other businesses that serve alcohol to the general public. As such, they re required to monitor their patrons alcohol consumption and not let them get behind the wheel if they re intoxicated. Social hosts. This category include individuals who invite guests to a party where alcohol is served. Unlike commercial hosts, social hosts aren t expected to actively monitor the alcohol consumption of their guests or required to prevent drunk guests from driving. In the words of the Supreme Court of Canada, consumption of alcohol and the risks of impaired judgment it entails is a personal choice and an inherently personal activity. Accordingly, social hosts are entitled to respect their guests autonomy and may allow them to make their own decisions [Childs v. Desormeaux, [2006] SCC 18 (CanLII), May 5, 2006]. Employers probably fall somewhere between

5 5 commercial and social hosts. Companies don t profit from alcohol consumption at holiday parties the way a bar or restaurant owner does. But the relationship between employer and employee is more like that between bar owner and patron than between a private host and a guest. Bottom line: Because employers may be either commercial or social hosts, from a risk management standpoint, the smart move is to play it conservatively and take the measures necessary to meet the more stringent commercial host standard. 3 STEPS TO MANAGE LIABILITY RISKS The courts have held that commercial hosts should take the following steps to manage their liability risks and you should do the same: Step #1: Monitor How Much Guests Drink Track how many drinks each of your guests has consumed. For example, one of the reasons the employer was found negligent in the Hunt case for letting the secretary drive home after she drank too much at a holiday party was that it had an open and unsupervised bar. As a result, employees were able to help themselves to drinks and there was no way to monitor how much each person had drunk. Before the party, designate one or more individuals to monitor alcohol consumption. Instruct monitors on their responsibilities as such and bar them from drinking during the party. You should also consider hiring professional bartenders, who are trained to keep an eye on how much customers drink. And you can keep track of and limit the number of drinks consumed by issuing attendees a set number of drink tickets. Step #2: Monitor Whether Guests Are Intoxicated In addition to monitoring how much party attendees drink, monitors should also determine whether guests are impaired. A good frame of reference to use is the legal limits that define intoxication levels for drunk or impaired driving. Under the Canada Criminal Code, individuals can be charged with a crime if they drive with a Blood Alcohol Content (BAC) of over.08%. Other penalties may be imposed on drivers in the BAC warn range of.05%-.07%. You don t have to administer blood tests and breathalyzers to your guests. All you need to do is make reasonable assumptions about intoxication based, in part, on how many drinks they ve had. But remember that the same number of drinks can affect individuals differently depending on their weight, size, body chemistry, how much they ve had to eat, etc. This general BAC chart below can provide some basic guidance. Step #3: Prevent Intoxicated Guests from Driving If you know or have reasonable grounds to suspect that an employee or guest at your

6 6 Make Sure Other Party Activities Are Safe, Too Serving alcohol isn t the only potentially unsafe activity that can take place at a holiday party. If you organize any games or activities, especially physical ones or activities that involve specialized equipment, and employees or guests get hurt, you could be held liable. That s what happened to a small technology company that held a customer appreciation event during the Calgary Stampede. For the party, it rented a mechanical calf roping machine, which was operated by the company s employees. Because the machine had a faulty spring, the operator had to reach into it to manually release a hook. While a worker was disengaging this hook, he was struck in the back of the head by a steel lever and died. The company was charged with failing to take all reasonable steps to ensure the safety of a worker and that all equipment provided at a worksite could safely perform its intended function. The trial court dismissed the charges, ruling that the company had exercised due diligence. But the Alberta Court of Queen s Bench overturned the trial court s decision and convicted the company, ruling that the company didn t exercise due diligence. And the Alberta Court of Appeal upheld the convictions. The court said that although the company didn t regularly operate such equipment, it knew that the machine wasn t working properly. So it set up a procedure that required the operator to reach into the machine to manually detach a hook. But this procedure didn t address the danger creating by having someone reach into the machine in this manner, which was reasonably foreseeable under the circumstances. Thus, the company didn t do all that was reasonably practicable to avoid the reasonably foreseeable risks, concluded the court. For example, once it was clear the machine wasn t working properly, the company should ve stopped using it [R. v. XI Technologies Inc., [2013] ABCA 281 (CanLII), Aug. 13, 2013]. party is impaired, you must make an effort to prevent him from getting behind the wheel. How far do you have to go to keep an intoxicated guest from driving? You should make a determined effort to keep drunk employees or guests off the road. A token protest or offer to drive the person home probably isn t going to be enough. For example, you should call a cab or the individual s family member, or physically take away the person s car keys if necessary. Avoid confrontations with impaired employees or guests by planning in advance and appointing designated drivers, giving out taxi vouchers and even reserving hotel rooms where drunk individuals can go to sleep it off. But be prepared to use more aggressive measures as well, including: Adopting a zero tolerance policy for drinking and driving and reminding employees before the party about this policy; Collecting the names and phone numbers of employees spouses or other individuals who can pick them up if they get drunk; Making attendees turn in their car keys if they plan to drink; Appointing a monitor to watch the parking lot in case an intoxicated employee or guest tries to sneak out; If necessary, disciplining intoxicated employees who don t cooperate; and If all else fails, calling the police. BOTTOM LINE The easiest way to avoid liability risks related to holiday parties is not to serve any alcohol at all. But if going dry isn t appealing, make sure you plan ahead and manage your liability risks to keep employees and guests and the drivers with whom they share the road free from harm and your company free from liability. And remember that these issues may also arise at other company-sponsored events where alcohol is served or provided, such as summer barbeques or company picnics.

7 7 HARASSMENT: Make Sure Employees Behave Themselves Impaired employees can engage in not only drunk driving but also other bad behaviour, including conduct that could be considered sexual or other forms of harassment. For example, a supervisor who s had a few too many drinks may make unwelcome sexual advances on a worker he supervises. And if harassment occurs, employers will have to deal with the consequences. Example: A senior manager attended an office Christmas party. As a result of events that occurred that evening, an employee made four complaints of sexual harassment against the manager. The employee alleged that he d made certain suggestive comments and engaged in unwelcome physical contact, such as putting his hand on her shoulder and touching her hair while complimenting it. The manager, who was drinking at the party, also suggested that she ditch her husband so she could take him home. The employer fired the manager, who filed a wrongful dismissal complaint. The court noted that physical contact between employees and personal compliments in the workplace are fraught with danger. It found that the manager s conduct was harassing and that the instances were, individually and cumulatively, serious in the sense that they could have a detrimental impact on the workplace. But the conduct

8 8 Holiday Decorating Safety Tips If you decorate your workplace for the holidays in general or just for your holiday party, follow these safety tips: Never use lighted candles near trees, boughs, curtains/drapes or with any potentially flammable item. Wear gloves while decorating with spun glass angel hair, which can irritate eyes and skin. When spraying artificial snow on windows or other surfaces, be sure to follow directions carefully. These sprays can irritate your lungs if you inhale them. If displaying a live tree, cut off about two inches off the trunk and put the tree in a sturdy, water-holding stand. Keep the stand filled with water so the tree doesn t dry out quickly. Stand your tree away from radiators and other heat sources. And make sure it doesn t block foot traffic or doorways. If you use an artificial tree, choose one that s tested and labelled as fire resistant. Artificial trees with built-in electrical systems should have the Underwriters Laboratory (UL) label. Use only indoor lights indoors (and outdoor lights outdoors). Look for the UL label. Check lights for broken or cracked sockets, frayed or bare wires, and loose connections. Replace or repair any damaged light sets. Use no more than three light sets on any one extension cord. Extension cords should be placed against the wall to avoid tripping hazards, but don t run cords under rugs, around furniture legs or across doorways. Turn off all lights on trees and decorations when the workplace is closed. Unplug extension cords when they re not in use. When displaying outdoor lights, fasten them firmly to a secure support with insulated staples or hooks to avoid wind damage. Never nail, tack or stress wiring when hanging lights and keep plugs off the ground away from puddles and snow. wasn t serious enough to provide just cause for the manager s summary dismissal. So the court ordered the employer to pay the manager $100,000 in damages [Hodgins v. St. John Council for Alberta, [2007] ABQB 275 (CanLII), May 1, 2007]. Bottom line: To avoid situations such as these, employers should have in place a harassment policy that lays out what s acceptable and unacceptable conduct. All employees should be trained on this policy. But it s a good idea to remind them of the policy before holiday parties or other events at which employees judgment may become impaired. Emphasize to employees that careless conduct at such events is fraught with danger and might result in discipline.

9 9 HOLIDAY PARTY SAFETY CHECKLIST This checklist spells out the steps to take before and during a party to avoid alcohol-related incidents. Use it while planning your company s holiday party to ensure that it s safe for all attendees, including employees, guests and facility staff (if the event is held outside the workplace). (You can also download and adapt this checklist at OHSInsider.com.) BEFORE THE PARTY OR EVENT YES NO Ensure that all workplace staff understand that the company opposes: Over-consuming alcohol Drinking and driving Acting inappropriately, such as fighting with or harassing coworkers or guests Participating in dangerous activities while under the influence. Ensure that everyone understands that drinking alcohol in workplace parking lots or the event space parking lot won t be tolerated. Consider any prior alcohol-related incidents at company events and take steps to prevent such incidents from happening again. Educate workers on the company harassment policy and explain appropriate conduct in the workplace and at company parties or events. Don t sponsor, organize, supervise, support or otherwise allow activities that encourage drinking, such as drinking games, giving away alcohol as prizes, etc. Plan fun activities for the party or event such as slideshows, entertainment or games to keep the focus away from alcohol. Learn how to use gentle persuasion to keep an intoxicated individual and those around him calm. Get phone numbers for family members in case you need their help in dealing with an intoxicated employee, such as having someone pick the employee up. Be prepared to take car keys from intoxicated individuals. And in serious cases do what s necessary to keep such individuals from driving, such as threatening or actually calling the police. Develop a plan for dealing with guests who arrive at the party or event under the influence of alcohol. Hire trained servers for parties or events held in the workplace or hold it at a reputable, reliable, licensed facility with experienced staff. Give servers clear instructions that the company won t tolerate intoxication and over-serving. Ensure that servers and all facility staff refrain from drinking before or during the party or event.

10 10 DURING THE PARTY OR EVENT YES NO Support servers decisions to refuse service, no matter who the individual is within the company. Never serve an intoxicated individual. Never serve, provide or make alcohol available to anyone who s under the legal drinking age. When in doubt, request ID. If drinks are sold, don t make the price too low. Serve guests rather than having an open bar or permitting guests to serve themselves. Don t serve extra strong drinks, double shots or high-alcohol content beers, coolers or other similar drinks. Limit the number of drinks that can be bought or asked for at any one time. Offer plenty of free non-alcoholic drinks and food. Avoid combining alcohol with activities that require coordination, balance or forethought, such as skating, skiing, etc. If alcohol is planned at such events, serve it only after the potentially risky activities are over. Supervisors and those in charge should set a good example and abstain from drinking or drink in moderation. Assign individuals to act as monitors and/or designated drivers. Stop serving alcohol long before the party or event ends. Never announce last call. Ensure security staff is placed at the entrances and exits, parking lots and other areas where problems may occur. And ensure such staff understand the company s alcohol-related expectations. Instruct security and other facility staff to use force only when absolutely necessary, such as to protect themselves, guests or other facility workers. Comply with facility safety guidelines, such as room capacity limits, keeping fire exits accessible, etc. Document all alcohol-related incidents or problems. Including efforts to discourage impaired driving. Offer free rides/taxi vouchers to anyone who needs a ride, not just those who appear intoxicated. COMPLETED BY: DATE:

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