More in the "No Good Deed Goes Unpunished" Column

By Lawrence F. Feheley

The holiday office party season is fast approaching. This means that employers have to be concerned about potential lawsuits, such as drunk employees causing accidents and overly spirited employees causing sexual harassment complaints. And now, there is yet another new potential liability to add to the list. Last month, an employer received an OSHA citation for a dangerous condition at a voluntary company picnic.

In order to thank employees for their extra efforts over the July 4th weekend, Safeway hosted an outdoor cookout. The cookout was held during business hours, next to the facility's loading dock. Employees were invited to attend, but attendance was voluntary. On the morning of the event, the plant superintendent asked the plant engineer to help set up the grill. In doing so, the engineer used a 40-pound propane cylinder instead of the 20-pound cylinder that came with the grill. This involved some special connection arrangements. When the grill was turned on, liquid propane escaped from the cylinder and erupted into a fireball, seriously injuring two employees.

OSHA cited Safeway for a violation of OSHA's general duty clause. This part of the statute requires each employer to furnish employment and a "place of employment" which are "free from recognized hazards." The citation was ultimately upheld in the Tenth Circuit Court of Appeals. The Review Commission and the Appeals Court ruled that the engineer was "working" when he made the grill connection and he was instructed to attend to the grill. Safeway's argument that the barbecue was a voluntary function and not a condition of employment was rejected. [Safeway, Inc., OSHRC Doc. No. 99-0316; Safeway Inc. v. OSHRC, 2004 U.S. App. Lexis 18848 (10th Cir. 2004)].

This case may be a little unique because the employee function was held on company property and employees of the company modified and operated the gas grill during work hours. Nonetheless, the lessons are (a) it makes sense to hire an outside, third party to handle company social functions, and (b) if company personnel are involved in putting on the function, management planning and supervision are required in order to guard against unsafe or dangerous acts of any nature.