In the latest Weekly Wright Report:
Shaken & Stirred—Hazards to Employers When Employees Drink at Work Events
Tiger Woods may be living a fairy tale on the golf course, but he hasn’t fared so well in the courts.
On the tails of his triumphant Masters’ win, Tiger is back in the news but not for missing the PGA Championship cut by a stroke. He and his Florida restaurant, The Woods Jupiter, are defendants in a wrongful death suit filed by the family of deceased employee, Nicholas Immesberger. According to reports, Mr. Immesberger was 24 years old, a bartender at The Woods Jupiter, and a known alcoholic. He was killed in a car accident driving home from the establishment in December. He had stayed for three hours following his shift and had a blood alcohol level more than three times the legal limit when tested following the crash. There are also allegations that the establishment promptly destroyed surveillance footage of the night in question.
Maryland is an outlier state for not having a dram shop law or social host liability. In most other jurisdictions, bars and restaurants may face liability for “overserving patrons” who subsequently suffer or cause personal injuries or property damage, typically while driving from the establishment. More than half the states also have “social host” liability which applies to private parties serving alcohol, such as in their homes. Maryland does have a very strict prohibition on serving or selling alcohol to those under age 21. Even if the minor presents a good quality fake ID, you are still liable.
Even without dram shop liability, most bars and restaurants in Maryland follow best practices to prevent injuries and deaths among its patrons and staff. Staff are not permitted to be onsite before or after their shifts to draw clear lines between work and social activity. Identification checks at the door or point of service are used to avoid serving minors. Bartenders and wait staff are (or should be) trained to gauge intoxication and “cutoff” a patron who is overdoing it.
Employers who are not in the hospitality industry may not have the opportunity to think through these concerns but should address them before the next company party or happy hour. Even without dram shop or social host liability, workers’ compensation, harassment complaints and negligent entrustment claims may expose employers who host events and supply alcohol. Aside from the legal issues, no company wants to deal with the negative press or tragic results that The Woods Jupiter is grappling with right now.
Consider these practices when planning your next company event to protect you and your employees:
- Host a breakfast or picnic rather than dinner or happy hour so alcohol is not involved at all
- Buy a limited quantity of alcohol so that no one is tempted to “finish it off”
- Stick to beer and wine which take longer to consume than hard liquor and generally have a lower alcohol content
- Offer fun “mocktails” and a variety of non-alcoholic beverages
- Always serve substantial food alongside alcohol, even if it’s just a happy hour
- End alcohol service well in advance of the event and switch to coffee, water and soft drinks
- Hire a professional bartender
- Offer two drink tickets per person rather than open bar
- If you have a younger workforce who may include minors or who may bring minor guests, use wristbands or handstamps to verify age at the door
- Offer rewards or special incentives to designated drivers
- For large events, partner with Uber or Lyft to provide discount codes for your attendees
- If anyone appears intoxicated, make safe travel arrangements for them
To discuss these issues, feel free to contact the WCS Restaurant Law group.
The Most Obvious and Overlooked Employee Wellness Program – Positive Morale
I recently participated in a 5K with my colleagues. We didn’t lace up running shoes and race outside for charity. We didn’t have to wake up early, shut down roads, or pin a race bib onto our clothes. We did it in work clothes. Inside. At the office. Over a workweek.
My creative co-worker calculated that 42 exterior laps around the perimeter of our office hallways totaled 3.1 miles. We each had a week to complete the competition. To keep accurate track, there was a large dry/erase board set up next to the kitchen to add a tally mark next to your name for every lap completed.
Several of my office mates participated in the voluntary exercise. Folks fit in laps around their workday and productivity was not sacrificed. The mental breaks were nice. Those whose work spaces were on the fringe of the track were delighted to have participants poke their heads in or give a friendly wave of encouragement.
The mood was light and energy was high throughout the week. Adding to the positivity was a presentation on healthy snack choices by a certified Cross-Fit trainer, who also happens to be one of our talented paralegals, and a morning of fresh fruit smoothies made to order in our own kitchen with organic ingredients. What a week.
As an employment lawyer always focused on the workplace morale of clients, I was proud what had been created at my own firm. Although completely voluntary, everyone in the office participated in some way. They either walked, ate, drank, cheered, encouraged or ribbed. The positive energy was palpable and it appeared the healthy week was well-received by all.
But some workplace wellness programs can be tricky to implement and subject to legal challenge.
Employers have been making strides towards implementing workplace wellness programs and incentives. Think smoking cessation programs. To help promote those programs, in July 2016, the Equal Employment Opportunity Commission (EEOC) tried to help, but went too far.
By way of background, under the Americans with Disabilities Act (ADA), wellness programs that involve a disability-related inquiry or a medical examination must be “voluntary.” Similar requirements exist under the Genetic Information Nondiscrimination Act (GINA) when there are requests for an employee’s family medical history, which arise as part of a health risk assessment. For many years, the EEOC declined to provide specific guidance until July 2016 when it issued a new rule providing that in connection with employer wellness plans, employers could implement penalties or rewards of up to 30% of the cost of self-only coverage to encourage employers to disclose ADA-protected information, without causing the disclosure to be involuntary.
Then, along came the American Association of Retired Persons (AARP). The AARP sued the EEOC seeking to invalidate the rules. The AARP, in essence, contended that a 30% incentive (or penalty) rendered an employee’s disclosure of ADA- and GINA-protected information involuntary because participants were forced to provide the information in return for the 30% premium discount. The U.S. District Court for the District of Columbia agreed with the AARP finding that the EEOC’s rules regarding the 30% incentive were arbitrary. The Court later ordered that the EEOC’s wellness rules be vacated effective January 1, 2019. The EEOC has reported that new employee wellness rules would not likely be ready until 2021.
The wellness rules have left some employers in a quandary because the current law neither expressly prohibits or permits workplace incentives. For those companies and organizations that have current workplace wellness programs that give incentives to employees, there are still a few existing regulations of which to be mindful. For one, wellness programs must be voluntary. They cannot coerce, intimidate, or threaten employees who don’t participate. Also, employers cannot deny coverage under any group health plans or benefits packages within a group health plan for those who choose not to participate in an additional wellness program. Employers must provide notice to employees describing the medical information gathered and how it will be used.
My firm’s week-long office 5K was not part of any formal wellness program. There was no entry fee. No one weighed in, checked blood-pressure, or offering insurance incentives for participation. Instead, our voluntary, week-long program created positive morale, friendly competition, and a lot of smiles.
I don’t anticipate any legal claims will be filed.
(This article is printed with permission from The Daily Record.)
Want more? Visit the Weekly Wright Report page to browse past issues.