What’s Your Legal Duty When Sending An Impaired Employee Home?

An employee shows up for work, and appears to be in no condition to work. But is the employee in any condition to drive him/herself home? You should have a policy in place for handling this type of situation.

An employer in New Hampshire had a policy that outlined the procedures to be followed when a manager suspected that an employee was impaired by drugs or alcohol. The policy stated, in part:

“The manager must escort the employee to the medical clinic. An impaired employee should never be allowed to drive, to protect the employee and others and to avoid being held liable for any accidents that occur. Security may need to be alerted to help control a belligerent employee.”

The policy also stated that, after a positive alcohol or drug test result, “the employer should arrange transportation for the employee off of the premises. Under no circumstances should an employee be allowed to drive. Taxis or family members can be used to transport employee off the premises. If the employee insists on leaving the premises before transportation can be arranged, the supervisor should call security and the employee should be informed that local police will be contacted.”

One Friday, an employee appeared confused and disoriented. He was sent home and instructed not to return until Monday. He returned the next day. A supervisor felt he appeared disheveled and his speech was slurred and sent him home again. When he failed to leave, the company called the police to remove him from the premises. However, the employee left before the police arrived.

Within hours, the employee returned, and, again, the police were called. The responding officers conducted several field sobriety tests and determined that the employee could drive safely. Approximately two hours later, he got into a car accident, injuring a passenger in another car.

The passenger sued the company and the supervisor, asserting that each owed her a duty of care to prevent the employee from driving on the day of the accident. She argued that the company voluntarily assumed the duty by adopting guidelines requiring that impaired employees not be allowed to drive.

“The mere existence of an internal policy setting forth procedures to deal with an impaired employee does not, standing alone, create a duty of care to the public at large,” ruled the New Hampshire supreme court. To rule otherwise, the court reasoned, would encourage employers to abandon efforts that could benefit such employees. It pointed to similar decisions out of Alaska, Kentucky, Michigan, Texas, and Wyoming. (Everitt v. General Electric Co., NH Sup. Ct., No. 2008-763, 2009)

Personnel Pause

If you send an impaired employee home, do not allow the employee to drive — regardless of whether it is your legal duty or not. Call a cab or the employee’s emergency contact. If the employee insists on driving, call the police. New Hampshire supreme court: Even if the company had a duty to prevent the employee from driving, any duty to control him “ended when the police officers took charge of .”