By Adam R. Young, Jennifer Mora
Apr. 7, 2020
In the heyday of the two-martini lunch, employers regularly tolerated alcohol in the workplace or employees presumably impaired by alcohol returning to work. Over the succeeding decades, employers began to concentrate on the business and legal liabilities imposed by drug and alcohol use and impairment in the workplace — including increased absenteeism, mistakes, sexual harassment, workplace violence, accidents and injuries.
Employers also discovered that their insurance companies claimed exemptions for certain claims if the employee creating issues had been consuming alcohol at work. As a result, employers largely began to adopt policies that prohibited employees from using or being under the influence of alcohol (and drugs) while at work. Most employers have since prohibited alcohol and drugs entirely or restricted alcohol to the occasional Christmas party or social function.
While there has not been a mainstream resurgence of alcohol consumption in the workplace, there has been a distinct trend in some collaborative and creative workplaces — including co-working environments — to expand access to alcohol in the workplace through kegs or onsite bars.
Employers who elect to allow drinking at work are advised to implement policies regarding such use and consider a variety of safety issues that could result. These considerations include how to handle intoxicated employees, whether to provide transportation for employees to drive home, tracking and limiting consumption, defining the times during the day when drinking is allowed and handling complaints lodged against employees.
With the legalization of recreational marijuana in many states, some employers with permissive alcohol regimens are deciding whether they will treat marijuana as they treat alcohol and how they will address workplace use and impairment.
Marijuana is unlawful under federal law and employers have the right to prohibit its possession, use and impairment by employees in the workplace (or while on company time). But some employers are considering relaxing their prohibitions on cannabis or even allowing cannabis in the workplace. They hope to attract workers who may have a positive attitude toward cannabis.
Employers must consider the potential liabilities if an employee uses cannabis at work and if those liabilities are less than, equal to or greater than the risk associated with alcohol use. Can an employer even allow this if it wants to?
To what extent weed at work starts to become as mainstream as alcohol at work remains to be seen, but there are several considerations that employers should ponder.
Employers are struggling to address the new hazards of widespread use of recreational cannabis and its potential risks to the workplace. While not all employers are continuing to drug test for cannabis, employers would be wise to consider the many legal liabilities associated with permitting cannabis use in the workplace.
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