‘People mentally are not in the same place’: How to host a work holiday party, legally

The holiday season is upon us, and with it comes the ubiquitous holiday work party. Especially with smaller or executive teams, many employers like to host in their own homes, but this could open them up to myriad liabilities.

In the changing post-pandemic world, hosting holiday work parties is not as simple as it used to be, and the risks of being sued by an employee may not be worth it, advised personal injury lawyer Jasmine Daya of Jasmine Daya & Co. This is especially true if the employer chooses to host the holiday party in their home.

“If you host a party at your home, you are opening yourself up immediately to liability,” said Daya. “If it's an employee-employer setting, not only are you hosting a social gathering, but this is by extension a workplace event, so there could be employment law issues, as well as civil liability issues, so there's heightened liability for employers that host a social event in their home.”

Increased substance use creates heightened liability risk during holiday work parties

More people than ever are using prescription medications like anti-anxiety, antidepressants and sleeping pills, Daya said. Plus, post-legalization, more employees would feel comfortable consuming marijuana before heading to a work party, or even during. Vaping’s popularity means employees could potentially be vaping cannabis while at the work party.

“People mentally are not in the same place they were pre-pandemic, everyone's a little bit more on edge, everyone's a little bit more sensitive … you don't always know what your employees are consuming, and while they may have only had one or two alcoholic beverages at the gathering, you don't know what they've consumed before,” Daya said.

“Those are things that employers really have to keep in mind because it's not that these things didn't exist before, it's just that it's a lot more prevalent.”

How to spot intoxication at the work party is more complicated

Heightened and more varied drug use in the general population means it’s not as easy as it used to be for party hosts to spot intoxication in their guests, Daya said, pointing to the frequency that restaurant staff have to retake alcohol serving certifications to keep up with the evolving array of symptoms to be aware of.

Glassy eyes, slurring, talking fast or slow – any unusual behaviour in an employee could be a sign of intoxication, she said.

“When you have those things in your body, and you see this surge of individuals overall using those types of prescription medications or cannabis, their level of impairment will increase faster with a smaller quantity of alcohol,” Daya said. “I think that it's become increasingly difficult for people that are hosting social gatherings, as well as restaurants and bars, to monitor consumption and levels of intoxication.”

What are employers liable for when they host holiday work parties?

“Reasonable foreseeability” is the operative word when mitigating holiday work party risk, said Daya. If people arrive by car, the host needs to ensure they don’t drive home drunk. But it doesn’t end there – even if they walk home, if they encounter an accident such as being struck by a car, the host could be sued by the driver’s insurance provider.

“My recommendation to employers is, perhaps you would like to host your event at an establishment because that decreases your liability exposure and in fact, passes the liability to the establishment,” she said.

Even when taking all due diligence steps, such as hiring drivers or certified bartenders and security, there is still always a risk of liability, even if the employer does decide to host it elsewhere, other issues could arise, such as a sexual harassment claim that could pose liability.

“I think mishaps happen a lot, but I don't think people recognize that they can sue. And so as people are becoming more aware that it is possible to sue for damages in terms of social host liability, which is a social gathering situation. I think we're going to see an increase in the number of lawsuits,” Daya said.

“[People] come to me not because they want to sue, but because they have to sue. If you can't work because you're injured, and you need to put food on the table for your family. Then you have to do what you have to do.”