Avoiding Negligent Hiring and Retention Claims Related to Alcoholism and Drug Abuse

Avoiding Negligent Hiring and Retention Claims Related to Alcoholism and Drug Abuse

August 1, 2000

Introduction

In recent years, public pressure has forced a significant crackdown on drug and alcohol related behavior. Not surprisingly, a body of law is emerging involving claims against employers for injuries caused by employees who were under the influence of alcohol or drugs. Usually, the Plaintiff claims that the employer was negligent for hiring or retaining the employee when the employer knew or should have known that the employee was unfit for his or her assignment. Often these claims arise:

· when an employee has a prior history of drug and/or alcohol use;

· when the company allows that employee to operate its vehicles or equipment; and

· when the employee causes injuries while he/she is intoxicated.

How can an employer protect itself against claims of negligent hiring or retention? In today’s legal environment, the employer must proceed cautiously in trying to prevent intoxication-related injuries while at the same time complying with state and federal disability laws relating to alcohol and drug addiction. A further complicating factor is that few automobile insurance policies provide coverage for claims of negligent hiring or retention. This leaves the employer wide open for a financially devastating judgment.

This Briefing Paper explores ways a company can protect itself against liability in this emerging area of the law.

 

Vicarious Liability

An employer can be liable under the doctrine of “vicarious liability” for damages caused by an employee acting within the course of his or her employment. An act is within the scope of employment if (1) the act is the kind which the employee is required to perform as part of his or her job, (2) the act occurs substantially within the authorized time and space of the employment, and (3) the act is committed for the purpose of serving the employer.

Several states, including Minnesota, presume that an employee is acting within the scope of his or her employment whenever the employee is driving a vehicle owned by an employer. In Minnesota, for example, if an employer provides an employee access to a vehicle, the employer is automatically liable for damage resulting from negligence on the part of the employee-driver. In other words, when an employee is driving a company-owned vehicle, an employer can be liable for an employee’s negligence regardless whether the employee was acting “within the course and scope of employment” when the accident occurred. See, Pluntz v. Farmington Ford-Mercury, Inc., 470 N.W.2d 709, 712 (Minn. Ct. App. 1991). Accordingly, the employer’s automobile insurance policy will normally cover damages caused by an employee when he/she is operating the employer’s vehicle. However, if the employer restricts use of or access to the vehicle (i.e. use the company vehicle only to drive to a warehouse in Brooklyn Park, Minnesota, and back with no other stops) and the bounds of the employer’s restrictions are exceeded (the employee travels to California), the employer may be relieved of liability for the driver’s negligence.

Negligent Hiring and Retention

Negligent hiring or retention is generally described as the employment of an individual whom the employer knows or should know is so incompetent and/or unfit that the employee poses an unreasonable risk of harm to others. This claim is distinctly different than an employer’s liability for the acts of its employees under the doctrine of vicarious liability.

To avoid liability for claims of negligent hiring or retention, an employer should use reasonable care to select and retain employees who are competent and fit to perform assigned work. An employer must also refrain from hiring or retaining those who are not competent or fit to perform their jobs in a safe manner. To show that the employer breached this duty, an injured person must demonstrate that the employee who caused the injury was unfit to perform his or her assigned work and that the employer knew or should have known that the employee was unfit. Thus, if an employer lets an employee with a suspended driver’s license drive company owned vehicles or equipment, the company might be considered negligent if the employee causes an accident. The likelihood of a negligence finding increases if the employee’s license was suspended because of a prior alcohol or drug related offense and the accident occurs as the result of intoxication.

Further, in some states courts have held that an employer cannot evade liability for its employee’s unfitness by not checking the employee’s driving record. See, Smith v. Tommy Roberts Trucking Co.; 435 S.E.2d 54, 57 (Ga. App. 1993); North Houston Pole Line Corp. v. McAllister, 667 S.W.2d 829, 835 (Tex. App. 1983). An employer who lets an employee drive company vehicles or equipment has a duty to check the employee’s driving record before giving the employee access to a company vehicle. Id.

Alcoholism and Drug Addition as a Disability

An individual suffering with alcoholism or drug addiction may be protected under federal (Americans with Disabilities Act (“ADA”)) and state laws (Minnesota Human Rights Act). The waters become murky when an employee has a significant drug or alcohol history, but he or she has a valid driver’s license. Does the employer let the employee drive? Can the employer limit the employee’s access to vehicles and equipment and the positions related to such use? Specifically, an employer subject to the ADA is prohibited from discriminating against individuals who are disabled due to alcoholism or drug addiction. Thus, it is an ADA violation to consider a person’s disability in hiring, advancement, discharge, compensation, or training. An individual is “disabled” by alcoholism or drug addiction if: (1) the alcoholism or drug addiction substantially limits one or more of the individual’s major life activities such as caring for one’s self or working, or (2) if the employee is “regarded as” an alcoholic or drug addict by the employer (even though the assumption is inaccurate) and the employee suffers adverse action based upon the employer’s belief.

In addition, the ADA requires that persons with disabilities be able to perform the essential functions of the job, either with or without reasonable accommodation. This restriction is crucial because it eliminates those without valid drivers’ licenses from ADA protection if having a valid license is crucial to the job. Further, the ADA permits an employer to refuse to hire or even take adverse employment action against individuals who pose a “direct threat” to the health or safety of others in the workplace. An assessment of whether an individual poses a direct threat to the health and safety of others must be based upon whether the individual presently poses a risk, not whether the individual posed a past risk.

For example, employee X has a long history of alcohol or drug related offenses and activities, but employee X attended rehabilitation and has been sober for six months. Employee X may no longer pose a direct threat and he is protected by the ADA. In contrast, a person with a drug or alcohol history who continues to use drugs or alcohol may pose a direct threat and may not be protected by the ADA. Thus, restricting use of company vehicles to those employees without any drug or alcohol history may violate the ADA because safety considerations must be based upon current, not past, risks.

Discussion

How does an employer protect itself against claims of negligent hiring or retention and still comply with federal and state employment laws? As with most areas of the law, there are no hard and fast answers. No court or government agency has published a list of guaranteed steps employers can take to balance employment law requirements and liability for negligent hiring or retention. Nevertheless, certain steps can be taken that will reduce an employer’s liability while complying with employment laws:

· implement and enforce a policy prohibiting anyone who has consumed any intoxicating substance from operating company vehicles or equipment;
· determine an employee’s fitness to operate the company’s vehicles or equipment; and
· evaluate the company’s business insurance coverage to see whether claims of negligent hiring and/or retention are covered.

Implement a Policy Prohibiting Consumption of Intoxicating Substances

Companies should adopt a policy that prohibits anyone from operating company vehicles or equipment if they have consumed any intoxicating substance. The policy should state that the consumption of any intoxicating substance on the job is prohibited and such consumption is outside the scope of employment and beyond the scope of permissive use of the vehicle or equipment. Require each employee that operates a company vehicle or other equipment to acknowledge receipt of the policy and agreement to comply with the policy. The adoption of this policy will serve three purposes:

· The policy may prevent accidents. Obviously, the best way to avoid liability for an accident is to prevent the accident in the first place.
· The policy may avoid vicarious liability. With this policy, if an accident occurs where an employee is operating a company vehicle or equipment and the employee consumed an intoxicating substance before operating the vehicle or equipment, a case could be made that the employee operated the vehicle or equipment outside the scope of the owner’s consent. Thus, the employer may not be held vicariously liable.
· The policy may avoid liability for negligent hiring or retention. Liability for negligent hiring or retention is based on hiring or retaining an employee who is incompetent to perform the assigned work. If operating a vehicle in an intoxicated condition is not part of the assigned work, then the employer may be able to avoid liability in this area as well.

Determining Employee’s Fitness

In some states, an employer who allows an employee to drive company vehicles or equipment has a duty to check the employee’s driving record before giving the employee access to a company vehicle or equipment. An employer cannot evade liability for its employee’s unfitness by failing to check the employee’s driving record. Before granting access to company vehicles or equipment, the employer should obtain the prospective or current employee’s driving record. Is the employee’s driver’s license suspended or revoked? Why? The employer must know whether the employee holds a valid driver’s license before turning over the keys to company vehicles.

Employers can restrict vehicle use to those who pose no current safety threat. Alcoholism is a protected ADA disability only to the extent that the employee does not constitute a direct threat to property or the safety of others. On-the-job intoxication prevents a person from performing the essential functions of the job and constitutes a direct threat to property or the safety of others, especially if the job involves operating a vehicle or heavy equipment. There are two major concerns in this area. The first concern is the distinction between work-related behavior and off-duty behavior. Most states, including Minnesota, prohibit discipline or discharge of an employee based upon the employee’s off-duty use of lawful consumable products. If an employee or prospective employee has a history of legal drug or alcohol use outside the workplace, an employer must be very careful to not base its decision to deny access to company vehicles upon such legal use. Decisions as to fitness to operate company vehicles and equipment must be based upon work-related behavior.

The second concern is whether an employee poses a current risk to the safety of others must be based on the current, not past, fitness of the employee. If an employee has a history of employment problems related to alcohol or drug use, it is reasonable to ascertain whether he or she has been rehabilitated. If so, the history of alcoholism or drug abuse should not be taken into account when deciding whether to grant access to company vehicles or equipment.

Insurance

If an employee is intoxicated and causes injuries while using the company’s vehicle or equipment, insurance coverage may, but may not, apply. If injuries involve the negligent operation of a company vehicle, the company’s automobile liability insurer often is responsible for coverage. If the injured person makes a claim for negligent hiring or retention against the employer, however, such damages would probably not be covered by the automobile liability policy. In fact, claims of negligent hiring and retention may not be covered by insurance at all. In addition, the cost to successfully defend such a claim can be significant. A company should meet with its insurance advisor to see if there is coverage for this type of claim.

Conclusion

In order to limit a company’s exposure for intoxication-related negligent hiring and retention claims, a company is best served by implementing policies prohibiting use of intoxicating substances when operating company vehicles or equipment, performing background investigations on each person who has duties that require operation of company vehicles or equipment, and obtaining insurance coverage for negligent hiring or retention claims.

This discussion is generalized in nature and should not be considered a substitute for professional advice. © FWH&T

Fabyanske Westra Hart & Thomson
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