Law

Here’s to keeping your holiday party DUI free

Attorneys say offering rides is good, but company policies are better.

October 31, 2014
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The holiday office party season is just around the corner, and one thing the party planning committee needs to think about is how to make sure everyone who imbibes gets home safely at the end of the night.

Jackson Lewis attorney Tim Ryan said employers should make sure they are taking action to prevent drunk driving.

“I have one client who has a big, fancy party and they have about 10 limousines to pick people up on different ends of town, bring them to the party, and when they are done, they limo them home,” Ryan said.

He also has clients who make sure to have cabs on hand or who hire a crew of designated drivers to drive partygoers home at the end of the night.

“The smart employers do that,” he said. “Your biggest worry is not the potential liability — that can be taken care of. Your biggest worry is making sure nothing happens.”

Liability, while not an employer’s biggest worry, is something an employer should think about.

While existing Michigan case law is in the employer’s favor, Ryan said there is potential for that to change.

“There are cases from other jurisdictions that are expanding employer liability in that area, so my advice to employers is you ought to assume that if you are going to throw a party and provide alcohol and somebody gets in an accident, you are going to get sued,” he said. “The way the law is evolving, you may very well get tagged.”

Ryan said he advises his clients who are throwing a party to check with their insurance agents to make sure they have coverage or to purchase a rider to cover the party.

“You can get a rider for a one-time event pretty easily,” he said.

Holiday parties are not the only time an employer should think about its alcohol policies; Ryan said most handbooks his firm prepares include a drug and alcohol policy.

“There is typically a substance abuse policy in a handbook,” he said. “The policy will make the prohibitions against the misuse (of drugs or alcohol) and will set forth the circumstances under which the company will require drug or alcohol testing. Usually in those policies there is a requirement that an employer report any arrest for any alcohol- or drug-related offense.”

Ryan said requiring employees to report an alcohol- or drug-related arrest is most important for those in positions of responsibility and on whom other employees’ safety depends.

“Employers are more concerned about these things for people who have responsible positions that can affect other people, like nurses,” he said. “A typical policy: If a nurse were to come to a hospital (employer) and report she’d been arrested for drunk driving, what the hospital would be concerned about is whether this is evidence of a bigger problem for her, so they have to be worried about her showing up for work under the influence. By requiring people to report drug- or alcohol-related arrests, what they are really doing is taking one step toward identifying people who might have problems that need to be addressed.”

He said typically an employer would then have the employee undergo a drug or alcohol assessment to determine if treatment is needed and begin requiring alcohol or drug testing for the employee.

“If the assessment said they have a problem and need treatment, then they would probably be required to go through the treatment as a condition of keeping their job,” he said.

On the topic of alcohol and employees in general, Ryan said employers must keep in mind when dealing with an employee who is an alcoholic that they cannot fire the employee for that reason.

“You can’t discipline or discharge somebody because they are an alcoholic,” he said. “The state of being an alcoholic is a protected disability. If I’m an alcoholic and I go home and get drunk every night, but I show up sober as a judge and get my work done and make it until 5, you can’t fire me because you think I’m an alcoholic and I might cause problems down the road. If I show up not sober, however, you can take action against me and I can’t say, ‘You can’t fire me because I’m an alcoholic.’ You aren’t firing me because I’m an alcoholic; you are firing me because I came to work drunk whether I’m an alcoholic or not. But you have to be careful.”

Mike Boyle, an attorney with Barone Defense Firm, represents clients who have been arrested for drunk or drugged driving and said he is seeing more companies include reporting requirements in their employee handbooks.

“The first thing we are going to do is find out who they are employed by,” Boyle said. “The first thing we ask for is the (company) handbook, because we first need to find out if we need to report anything to the employer.”

He said an employer could fire someone if the drunk-driving conviction or plea impacts his or her job duties. He noted someone in a sales position might not be able to rent a car or cross the border into Canada, and if those were part of their job duties, an employer could terminate employment.

Boyle said for many clients who have to obtain a license in their profession, there are reporting requirements to licensing boards for convictions or pleas, and in extreme cases someone could face a license suspension or loss, which could impact their ability to do their job.

He noted in West Michigan some of those professions include health care jobs, CPAs, lawyers, banking professionals and in some cases teachers. Boyle said not reporting can result in harsher consequences.

“When we are talking about a health professional, that is going to include the doctors, any nursing profession, physical therapy, the dental industry — each one of those has an obligation to report a conviction to their state licensing board,” he said.

“Every case is treated individually. When a client asks, ‘What is going to happen?’ I can’t give them an exact answer.”

Boyle said drunk-driving arrests have been decreasing during the past few years. He noted in 2013, 36,000 people were arrested for drunk or drugged driving. That is down 3.7 percent from 2012.

“Where there is an increase that we are seeing is in drug-related arrests for driving,” he said.

Boyle said drugged-driving arrests are usually due to someone being under the influence of a prescription medication.

“More and more officers are receiving additional training in what is called drug recognition evaluation,” he said. “That is probably the most common training officers are beginning to receive. There are very few across the state that actually have it, but it’s obviously increasing with the concern of people driving under the influence of prescription medications. There is a different set of field sobriety tests that they try to use to evaluate if someone is under the influence.”

Once someone is placed under arrest for drunk or drugged driving, the numbers are not in their favor.

“If you are arrested for an alcohol- or drug-related charge, there is an extremely high likelihood you would be convicted of a drug- or alcohol-related charge,” Boyle said.

Boyle said most of the time a drunk- or drugged-driving arrest won’t lead to a license suspension or loss.

“The majority of the time they aren’t going to take any action, but you are now in the system.”

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