'Tis the Season: Holiday Parties + Employer Obligations
The holiday season has arrived, and with it many employers will celebrate the year with their staff. To ensure that everyone has a safe and joyous time, employers should keep in mind their obligations to employees and guests who attend office parties or holiday events.
In Canada, the law has recognized that some hosts will be held to a higher standard than others when determining liability. The standard that is expected will vary depending on the particular facts, but there are three broad categories of liability for hosts:
- Commercial host - A commercial host is a business that sells alcohol to the public from its business premises for a profit. This is highly regulated, and the courts have imposed a higher obligation on commercial hosts to ensure their patrons do not become intoxicated and suffer injury or hurt someone else. This is because commercial hosts have a “special relationship” with their patrons, arising from the host’s profit motive and their patrons’ vulnerability.
- Social host – Less likely to produce liability is the social host context, where alcohol is freely given in social settings held in a private home. Social hosts are treated differently than commercial hosts because there is no profit motive, because hosts are not required to monitor consumption, and because of the recognition of personal responsibility on the part of the drinker. It is possible that liability for injuries to a guest or to a third party be imposed in circumstances where something “more” exists, such as where a host continues to serve alcohol to a visibly inebriated person knowing that the person will drive home or where the host’s conduct, in some other way, implicates them in the creation or exacerbation of the risk.
- Non-commercial relationship-based host – This is an “in-between” category that employer’s may fall into within the context of an office or holiday party. An employer may be viewed as being more sophisticated than an average individual who hosts a party in their home, as they usually have more authority over employees than homeowners have over their guests. This means that an employer stands in a different position than a purely social host. However, employers generally do not sell alcohol to employees for profit and are different from commercial hosts.
In general, merely hosting a party for staff where alcohol is served or consumed is probably not sufficient to establish liability for an employer. This may depend on where the party is held; a party held at the employer’s business premises may give rise to more risk to an employer than a party hosted at a venue such as a hotel or other commercial host.
However, if there are additional factors at play that may create or increase risks of danger such that it is reasonably foreseeable that a guest or bystander would suffer harm, such as over-serving someone who is obviously intoxicated or knowingly allowing someone who is obviously intoxicated to drive, it may be possible for an employer to be found liable should someone be injured as a result. Courts have recently confirmed that the scope and duration of a host’s obligations to their guests is a factual question and may vary depending on the circumstances.
While risks around the consumption of alcohol at parties or social events are well known, the legalization of cannabis may also create risks around drug-impaired driving. While this issue is too novel to have been developed in the law, it is likely that the same analysis would apply to cannabis use as would apply to alcohol consumption in determining what risks hosts face.
What can employers do to minimize their risk? Employers should take proactive steps that may include:
Service of Alcohol
- Ensuring qualified and trained individuals are serving alcohol
- Ending the service of alcohol prior to the end of the event
- Monitoring and limiting the number of drinks a guest may consume during the party
- Prohibiting activities that encourage the consumption of alcohol and drugs
- Informing all attendees not to drive while intoxicated, by alcohol or otherwise (both before and during the event)
- Making alternative transportation options available to guests (such as taxi chits, reimbursement for ride-share services, or designated drivers) and telling guests about them beforehand
- Calling the police for assistance if an intoxicated guest insists on driving
Assist with Accommodations
- Assisting guests with arrangements for nearby accommodations (such as setting up hotel rooms at discounted rate that employees would pay themselves)
The lawyers in Field Law’s Labour and Employment team wish you and your organization a safe and merry holiday season.
P.S. Effective January 1, 2019, compressed work week arrangements entered into before January 1, 2018 are no longer valid under the Employment Standards Code. Employers must enter into averaging agreements with employees, either individually or as a group, should they wish to have them work compressed weeks without incurring the obligation to pay overtime.