We have been tracking a tragic accident in Michigan that illustrates a very open-ended liability for employers. According to an article in the Detroit Free Press, Thomas Wellinger was a well-regarded employee of Unigraphic Solutions, a high tech company in Michigan. After his marriage failed last year, he apparently developed a drinking problem. On May 3, a little after 3 pm, he left work and drove his SUV at 70 miles per hour into a car driven by Judith Weinstein. The 49 year old mother and her two sons, Alexander, 12, and Samuel, 9, were killed instantly. Wellinger had a truly amazing blood alcohol level of 0.43 -- a clear indication that he routinely maintains a high level of alcohol in his system (his blood alcohol level would kill most of us outright). As is so often the case, Wellinger survived the crash, suffering a broken neck. He has been charged with vehicular homicide.
Here's the issue for his employer: how long have they known about Wellinger's drinking problem? What have they done about it? While Wellinger may not have the deep pockets to cover the inevitable liability for his negligence, his employer does have liability insurance. The burden of proof shifts now to the employer: they have to prove that their actions in controlling Wellinger were prudent and reasonable. It's worth noting that the employer intends to cooperate with the investigation, but their counsel has recommend that they repond only to a subpoena.
What did you know and when did you know it?
It appears that Wellinger may have spent a late night drinking at a local casino (note to attorneys: additional deep pockets here...) He showed up for work, then left the office early. Here's the crux of the Unigraphic's potential liability: Wellinger returned briefly to the office around 3 pm. Was anyone aware of his drunken state? (Even for a steady drinker like Wellinger, the 0.43 blood alcohol level must have been visibly evident.) And if the employer was aware of his acute intoxication, what if anything did they do about it?
The Free Press article quotes Bill Judge, a Chicago-area attorney who works with corporations to develop drug-prevention programs and policies dealing with substance-abusing workers. Judge states that although there is no Michigan law mandating that employers stop drunken employees from driving, they can face serious civil liability.
"You have to understand that once a worker shows up drunk, the employer must act ... he becomes the employer's responsibility.You put him in a cab, or you call the emergency contact person on his application and say come get him. If he decides he's going to drive anyway, you call the police."
While attorneys often obfuscate matters, Judge has nailed this one perfectly. If the employer is aware of the danger to the employee and others, action must be taken. You are not obligated to restrain someone (that's a police function), but you do need to ameliorate the risk. If the employee insists on driving away, call the police and give them a description of the vehicle.
Written Policies Are not Enough
The American Management Association estimates that over half of American companies have pre-employment drug and alcohol testing, but only 38 percent have post-hire testing programs. In any event, written policies are pretty useless if you don't walk the talk. When a volatile situation occurs -- when an employee shows up intoxicated -- the employer must take immediate action. Supervisors need training in what to do and how to do it. If you let an impaired employee drive off, you are endangering innocent people like the Weinsteins. If it can be proven that the employer was aware of the danger, our legal system will hold that employer accountable, even though the employee is no longer in the "course and scope" of employment.