What employers need to know.
The holiday season is when office parties abound. It’s also the season to be especially aware of the risks and responsibilities involved in serving alcohol at work-related events. Going forward, in the wake of legalization, employers will also have to be aware of the risks and responsibilities regarding the use of cannabis at office holiday parties.
Similar to commercial liquor providers, employers are held to a higher standard of care than social hosts when hosting events involving the service and consumption of alcohol. This duty extends to party guests and anyone else who might encounter these guests, such as other drivers on the road. The legalization of recreational cannabis has not increased this standard of care per se. Moreover, recreational cannabis is still illegal in the workplace. However, in contexts where alcohol is normally consumed such as holiday parties, employers must be more mindful of their guests becoming impaired by both alcohol and/or cannabis.
Employers are expected to take reasonable steps to prevent employees from becoming intoxicated, and to take positive action (such as providing another means of transportation home) once a reasonable foreseeable risk of harm arises from over-service.
Employers will have to further consider over-service in relation to cannabis. Guests may be over-served by what may be an otherwise normal amount of alcohol, if they have consumed or are consuming cannabis. This is because mixing alcohol and cannabis produces a heightened state of impairment. Regulators have warned not to mix alcohol and cannabis. As such, reasonable steps and positive action must include consideration of cannabis use by itself and especially in conjunction with alcohol.
Employers may be exposed to liability if an intoxicated employee leaves a work-related party and ends up injuring someone. In the BC case of Jacobsen v. Nike Canada Ltd., for example, an employee was involved in a car accident and rendered a quadriplegic after leaving work intoxicated. His employer had supplied beer to employees that evening but had placed no restrictions on how much they could drink, and did nothing to prevent the plaintiff (who consumed eight beers in three hours) from driving away.
The employer was held in breach of its duty by providing large quantities of alcohol to employees, not monitoring their consumption, and allowing them to drive home. The employer was found to be 75% responsible for the employee’s injuries.
In the Ontario case of Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc., an employee became intoxicated at a Christmas office party with an unmonitored bar and was injured in a car accident after she left the party. The trial judge concluded that the employer was under an obligation to safeguard her from harm and this obligation extended to ensuring she did not become intoxicated and, if she did, taking steps to stop her from driving home.
With office parties, employers acting as hosts have a duty to protect both employees who become intoxicated and third parties who might encounter them. The risks relate to both physical and non-physical injuries (e.g. harassment claims). Nevertheless, by planning ahead, employers can reduce their risks and celebrate holiday office parties:
- Revise holiday party policies to specifically clarify expectations surrounding the use of alcohol and cannabis.
- Remind employees in writing before the event:
- Whether they have consumed alcohol or cannabis, they should not drive home.
- They are expected to moderate their intake of alcohol or cannabis; should not mix alcohol and cannabis; accept responsibility for their own consumption; and cooperate with your efforts to ensure their safety and the safety of others.
- Provide a good choice of food and non-alcoholic beverages.
- Have your management team set a good example by remaining sober.
- Consider asking employees to turn in their car keys before being served alcohol. Obtain telephone numbers in advance for spouses or other family members in the event you need to contact them.
- Hire or appoint a trained person to monitor alcohol consumption and behaviour and take action when impairment is detected.
- Set and enforce strict limits on the number of drinks an employee may purchase.
- Consider implementing a different set of rules for cannabis use compared to alcohol use at office parties. Employers may therefore be justified in restricting cannabis use more stringently than alcohol at an office party (i.e. zero tolerance or zero tolerance for co-use of alcohol and cannabis during office events).
- Don’t assume your company is protected from liability simply because the event is held at a commercial establishment or has a cash bar.
- Don’t distribute free drink tickets or provide an open bar. Definitely don’t allow employees to mix and pour their own drinks.
- Be especially careful to eliminate bulk buying later in the evening and ensure that the bar closes well before the end of the event.
- Be aware of “smoke breaks” during which guests may consume cannabis before returning to the event.
- Don’t allow employees who are exhibiting signs of impairment to continue drinking or use cannabis.
- Ask departing guests if they have a safe ride home.
- Provide designated drivers or alternate means of transportation directly home for employees who have consumed alcohol.
- Don’t allow a potentially impaired employee to leave the event unless accompanied by a designated driver (or another sober person) who has clear instructions to get the employee directly home.
- Don’t ever leave the decision of whether to drive in the hands of a potentially impaired employee and don’t be reluctant to contact the police immediately if a potentially impaired employee manages to leave unaccompanied.
- Don’t hesitate to invoke your authority as the employer in assuring compliance with your efforts to ensure your employees’ safety.
- Consider purchasing additional insurance to ensure there are no gaps in coverage. For example, server liability insurance is available for servers at such events, providing protection against injury and property damage resulting from the provision of alcohol. Also ask your insurer whether they can provide additional or modified coverage in relation to cannabis and alcohol use.
- Obtain, if necessary, a Special Event Permit (SEP). It’s required if you are planning to serve alcohol in an unlicensed public area (such as a rented hall) and expect fewer than 500 people; it’s not required if the event is held privately at a closed unlicensed business premises and alcohol is served but not sold. More information and an on-line application can be found at specialevents.bcldb.com.
- Note too that SEP holders, managers and servers must also take a Special Event Server (SES) course before the event. This course helps anyone involved in the sale and service of alcohol at SEP events to understand their legal responsibilities and prevent problems arising from over-service. The course can be completed online at www.specialeventserver.com and is not needed for anyone who already has a valid Serving It Right certificate.
When it comes to holiday parties, employers have a heightened level of responsibility to prevent and protect against harm from intoxication, whether by alcohol or cannabis. With diligent planning and execution, employers can fulfill their responsibility and host an event that’s memorable for all the right reasons.