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We are in holiday season. Many private and public entities have holiday parties this time of year, and inevitably there will be accidents either going to or from the party or perhaps slipping and falling on the dance floor. What do employers need to know and what can they do to avoid such claims when they schedule weekend or after-work parties?
First, the employee must prove that the event is a regular incident of employment and that the purpose of the event was to promote an end greater than improvement of morale. If it is all about morale, it is not compensable. A fundraiser might be an example of an event whose purpose promotes something greater than morale.
But even if the employee cannot meet this test, the employee will prevail if he or she can show that attendance was compulsory. That which is required is considered to be work-related. Now realistically, most employers do not send out invitations to holiday parties saying that attendance is compulsory. But that is not the only way for an employee to prove attendance was compelled. If the person in charge of the party says, “Hi Sam, I sure hope you are going to make the holiday party on Saturday,” Sam may testify at trial that he had a reasonable basis to believe that his attendance was compelled. If the person in charge of the party keeps asking people whether they are attending, and then presses for explanations on why they are not planning to attend, or suggests that “the boss will be disappointed,” a Judge of Compensation may very well find that the employee had a reasonable basis to believe that attendance was compelled. So the test of compulsion is not whether the words “mandatory attendance” are on the invitation but whether the employee had a reasonable basis to believe he or she must attend.
When employers lose cases involving injuries going to or from holiday parties or slip and falls at the party, it is mostly because the injured employee can convince the Judge of Compensation that he or she felt compelled to attend. If that is the case, the ride to the party and the ride home is covered by workers’ compensation. Car accidents are the main cause of injuries, often very serious ones, and the risk of injury may be compounded by use of alcohol or wintry road conditions. Unfortunately, the New Jersey law does not protect employers from injuries caused largely by intoxication because the current law requires the employer to prove that no cause – other than the use of alcohol – contributed to the accident. So if you have someone who is intoxicated above the legal limit and the roads are slippery when the accident happens, the employer will lose because there is another reason for the accident besides intoxication, namely the slippery road conditions. Needless to say, we are in December.
The best way for employers to insure that they do not have to pay for holiday party accidents is to make it crystal clear that attendance is optional. Put that language all over the invitation. Make it clear that there will be no names taken of attendees, and non-attendees, and do not pester people who have no plans to attend. High level employees should not be walking around asking employees why they are not coming to the party. This may make it harder to guarantee a number of attendees for the restaurant, but that is far better than having to pay a death claim for someone who is tragically injured driving home from a holiday party.
Bear in mind that holiday parties during work hours are a completely different subject. These parties where people are actually at work and getting paid during normal work hours are almost always covered. So if there is a party at lunch at Lincoln Company in the cafeteria, and someone slips and falls on the floor while grabbing an egg nog, that injury will be held to be compensable because on-premises injuries are compensable unless they constitute a deviation from employment.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.