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The Intoxication Defense is Not Always Affirmative

By Claire Meredith


Who does not love to grab a glass of wine during happy hour with your co-workers, especially now that the weather is getting nice? However, like in all situations, the employer must act reasonable in order to avoid being liable for any injuries resulting from intoxication. If the employer tolerates and encourages the employee's intoxication that resulted in the injury, they may be barred from raising the intoxication defense.

As you know Labor Code Section 3600(a)(4), states an injury is not compensable when it is “caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.” However, it is not always a slam-dunk defense for defendants.

In a recent case, Brown v. Integrity Flooring, 2019 Cal. Wrk. Comp. P.D. LEXIS 9, the applicant was out to dinner with his boss. The applicant testified that the boss provided him with alcoholic beverages before and during dinner. The boss offered a dollar raise for each alcoholic beverage consumed. The applicant also testified that his boss was too drunk to drive and requested he drive the boss’ motorcycle home. The applicant was injured, and the Board concluded defendant could not assert the intoxication defense because the boss encouraged the applicant to consume alcohol and drive while under its influence.

Here, this is clearly egregious behavior. However, it is a good reminder to be careful when having drinks with your employees. Make sure your supervisors (or people in power) are not engaging in this type of activity. Please note, it is ok to go to drinks with your employees after work. However, the drinking must be reasonable. If the applicant continues to drink in excess after the employer has left, the injury will probably be barred by the intoxication defense. But, if the employer encourages the applicant to consume alcohol in excess, they may be liable for any injuries resulting from the intoxication. Have fun but drink responsibly.


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