The holiday season is fast approaching, making it the perfect time to review legal duties and best practices when hosting an employer sponsored holiday event. Let’s focus on four key areas: host liability, workers’ compensation, workplace harassment, and inclusivity and accessibility.
Host Liability
Planning to serve bubbly (or any legal intoxicant) at your holiday bash? You may be liable if an employee comes to harm.
In Hunt v Sutton Group Incentive Realty Inc.,1 the court found an employer owed a duty of care to an employee injured in a car accident when driving home intoxicated from the employer’s holiday party which had an unsupervised open bar. The employee left the party and met friends at a pub where she consumed more alcohol. The court ruled the employer was negligent in failing to ensure the employee did not become so intoxicated so as to interfere with her ability to safely drive home. It also found the “intervening act” of drinking at the pub did not absolve the employer of partial liability.
Best practice
- Have a drug and alcohol use policy for the workplace. The policy should set out expectations regarding responsible and professional conduct and the consequences of a violation. Consider reminding employees of the policy before each relevant event.
- Set the tone. Prohibit drinking games/contests or other behaviour that can lead to overindulging.
- Consider a drink ticket system instead of an open bar, and retain the services of a professional bartender who is Smart Serve certified.
- Provide non-alcoholic alternatives.
- Provide food if you plan to serve alcohol.
- Arrange for safe transportation home (g., ride share, taxi, designated driver, etc.).
- Do not allow an impaired employee to drive from the event. If they insist, contact the police.
Workers’ Compensation
A worker injured at an employer-sponsored event may be entitled to claim workers’ compensation benefits which, in turn, may trigger an employer’s reporting obligations, and impact premiums. Although entitlement to workers’ compensation benefits must arise out of and in the course of employment, injury at an employer-sponsored event likely meets this requirement.
In Decision No. 551/91,[1] the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) held a worker was entitled to workers’ compensation benefits when she suffered an ankle injury during a “balloon stomp” game at a workplace holiday party, held offsite, after hours. The party was organized by a social committee of workers and funded through a modest deduction from wages (i.e., $2.00 from each pay cheque). The WSIAT found the injury was related to the worker’s employment because funding came from worker pay cheques, the purpose of the party (as with many workplace parties) was to improve workplace morale, thank workers for their service, and allow workers from different departments to mingle.
Best Practice
- Choose an event or activity with a low risk of injury.
- Know your reporting obligations should an injury occur.
- Avoid events that combine physical activity and legal intoxicants.
Duty to Provide a Harassment-Free Environment
Across Canada, every employer has a duty[2] to protect employees from workplace harassment. Violent or harassing behaviour, including sexual harassment, can be more likely at an event where alcohol or other intoxicants are consumed and workplace norms are perceived to be “relaxed.” Employees may also be more likely to publish unprofessional content, potentially violating the privacy of others, and damaging the reputation of the employer.
Best Practice
- Every employer is required to have a workplace harassment policy. If your workplace does not, now is the time to address this.
- Consider having a social media policy that sets out what employee behaviour will and will not be tolerated.
- Review your workplace harassment and social media policies with employees prior to any relevant event to reinforce expectations of respectful and professional conduct.
- Designate team leaders who will stay sober and look out for intoxication or misconduct.
Inclusivity and Accessibility
The holiday season is a time for celebration! However, if an event is exclusive to one religion or culture, or focuses on consumption of alcohol, this can inadvertently exclude some colleagues from the celebration.
Best Practice
- Name the event a “holiday party” or “end-of-year celebration” rather than referencing a holiday that may not be celebrated by everyone.
- Choose a date and time that doesn’t conflict with other major religious holidays or holy days.
- Choose a venue that is accessible for persons with disabilities.
- Be respectful of those who opt out.
Let Sherrard Kuzz LLP help you prepare for a fun, safe and inclusive holiday season!
To learn more or for assistance, contact your Sherrard Kuzz LLP lawyer or info@sherrardkuzz.com.
[1] 2001 CanLII 28027 (ON SC). This decision was reversed on other grounds. For more details, see our briefing note.
[2] 2019 ONWSIAT 1167.
[3] Arising from both human rights and workplace health and safety legislation.
