When a serious workplace incident occurs—whether it's a vehicle accident, employee injury, workplace violence event, or discrimination claim—organizations often focus narrowly on what happened that day. But according to risk management expert Steve Garvy, the real question isn't just what happened. It's what the organization did before the incident to prepare.

Steve Garvy has spent more than three decades helping organizations navigate complex liability questions. As Founder and Principal of The Garvy Group, he works closely with global hospitality, gaming, real estate, and insurance carriers on safety, security, and enterprise risk management issues. What makes his perspective particularly valuable is his experience working on both sides of litigation—for plaintiffs and defendants alike.

We sat down with Steve to discuss how employers should be thinking about workplace impairment, liability exposure, and organizational defense in today's challenging legal environment.

The Four Gateway Questions of Liability

Whether evaluating a case for a plaintiff or defendant, Steve considers four fundamental questions that determine potential liability:

1. Was the company aware of foreseeable risk exposures or hazards?
2. Did the company have a duty to protect others from a known or foreseeable risk or hazard?
3. Is the company able to demonstrate a reasonable effort to reduce, minimize, or prevent the risk or hazard—or did they breach that duty?
4. Did such breach result in harm or injury?

"Simply stated, the plaintiff's objective is to establish the defendant's liability through either act or omission which led to the damages," Steve explains. "On the other hand, the defendant's goal is to demonstrate that they acted reasonably in assessing, identifying, and trying to eliminate or substantially reduce their exposures and incidents through reasonable and responsible actions."

Evaluating Workplace Impairment Incidents

When Steve evaluates an employer after a serious workplace incident involving an allegation of impairment, he immediately examines how the organization prepared itself for that type of exposure.

Key questions he considers include:

• Was the incident foreseeable given the nature of the job, tasks, industry, or employment climate?
• If foreseeable, what policies, procedures, standards, training, and ongoing performance management were in place to minimize or prevent such incidents?
• How were company policies aligned with local, state, and federal employment laws and regulatory requirements such as OSHA?
• What policies exist regarding reasonable suspicion testing and post-incident drug testing?
• How are supervisors and managers trained to identify and respond to potential impairment?
• How are incidents documented?

"In many cases, the answers to these questions can provide a great deal of information regarding the root cause of the incident and begin to establish potential assignments of accountability and opportunities for improvements," Steve notes.

The Cannabis Legalization Challenge

Cannabis legalization has created unprecedented challenges for employers trying to maintain safe workplaces. Steve identifies several critical pain points:

No Standardized Impairment Level

Unlike alcohol, where a blood alcohol level of 0.08% and above generally indicates intoxication, there is no universally agreed-upon THC level to determine impairment. This creates significant complications for employers attempting to determine whether an employee may be impaired or whether impairment contributed to an injury.

THC Presence Doesn't Equal Impairment

The presence of THC in an employee's blood may not indicate current impairment or even on-the-job use. THC can remain detectable long after its impairing effects have worn off.

State Law Complications

Many states now prohibit employers from taking adverse action solely because an employee lawfully consumed cannabis outside of work. This creates a complex patchwork of legal requirements that varies by jurisdiction.

"As a result, it is critical that those assessing and attempting to make determinations regarding levels of potential impairment in the workplace must be given effective and accurate tools and methods to recognize and document actual workplace impairment," Steve emphasizes.

What Separates Successful Organizations from Those That Struggle

Steve offers a blunt assessment of what distinguishes organizations that successfully defend workplace incident claims: "I am a firm believer that if it is not written down, it did not happen."

He observes that while many organizations claim safety is their top priority, very few can demonstrate this commitment in an objectively quantifiable manner.

Organizations that successfully defend themselves share these characteristics at leadership, management, and operational levels:

1. Proactive Due Diligence

A commitment to ongoing assessment of evolving risk exposures in their industry and operations.

2. Risk Recognition

Clear acknowledgment and understanding of the specific risk exposures present in their industry and operations.

3. Resource Commitment

Financial and operational investment in developing, implementing, and effectively managing policies, procedures, standards, training, and performance metrics throughout the organization.

4. Comprehensive Documentation

Maintaining records of policies, procedures, standards, training, and objectively quantifiable performance metrics that demonstrate consistent application across the organization.

"Claim resolutions and legal matters are not determined by what a company intended to do," Steve stresses. "They are based on whether a company can demonstrate that they acted reasonably and responsibly to reduce exposures and incidents."

Critical Advice for Executive Leadership

When asked what advice he would give executive leadership before—not after—an incident occurs, Steve broadens the perspective beyond internal operations:

"When it comes to risk management, and specifically matters of liability, do not just consider how you are going to address the risk exposures in your business. You must consider the risk exposures in the climate within which you do business and how you will manage those."

This climate includes:

• Industry-specific risks and standards
• Geographic location considerations
• Employment market dynamics
• Regulatory requirements
• Civil and criminal legal climate

"Effective risk management is just that—managing risk that you are unable to effectively transfer or eliminate," Steve explains. "Every organization will experience incidents, some of which may be significant and even catastrophic."

The Bottom Line: Preparation Is Everything

Steve's message is clear: The key factor in reducing exposures and incidents—and protecting a company's product, image, and brand—is whether leadership can demonstrate their commitment to staying ahead of foreseeable risk exposures in a meaningful, reasonable, and responsible manner.

"Organizations that invest in supervisor training, clear procedures, and consistent documentation are not only reducing potential risk exposures—they are putting themselves in a much stronger position to protect their employees, defend their decisions, and ultimately reduce the financial and reputational costs that can follow serious incidents."

The legal landscape surrounding workplace impairment continues to evolve rapidly. Employers today must maintain safe workplaces while respecting employee rights under an increasingly complex framework of state and federal laws, including the OSH Act Section 5 at the federal level and state laws like New Jersey's CREAMM Act.

As Steve Garvy's extensive experience demonstrates, the organizations best positioned to navigate this complexity aren't those that react after an incident occurs—they're the ones that prepare beforehand through knowledgeable supervisors, objective impairment recognition protocols, consistent documentation practices, and defensible workplace processes.

Key Takeaways for Employers

• Document everything—policies, training, incidents, and responses
• Train supervisors to recognize and document actual impairment, not just positive test results
• Stay current on evolving state and federal employment laws
• Commit resources to proactive risk assessment and management
• Demonstrate safety commitment through measurable, consistent actions
• Consider the broader legal and regulatory climate, not just internal policies

The time to build your defense is before you need it—not after a serious workplace incident puts your organization under scrutiny.