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Cellphone use while driving

By Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com---Canadian Payroll and Employment Law News, May 2008

Three Canadian provinces have been proactive and implemented bans on the use of hand-held cellphones while driving. Newfoundland and Labrador, Nova Scotia and Quebec have enacted laws modifying their existing highway traffic or motor vehicle legislation banning the use of hand-held devices that include telephone and text messaging functions while driving in cars and trucks. “Hands-free” devices are still allowed. That is, the measures let drivers talk on cellphones that allow them to keep their hands free to drive. However, drivers can still make calls using hand-held cellphones in a medical emergency, or to report a traffic accident or hazard.

The provision is enforced if the driver is caught by the police using a cellphone while driving, or a driver is pulled over for another traffic offence and a cellphone is involved. Drivers will be fined and may lose demerit points.

Other jurisdictions are still studying the issue or debating private members' bills calling for similar bans.

Because legislation to ban the use of hand-held cellphones while driving has expanded to several jurisdictions, we wanted to know in our latest poll if our readers intended to implement a cellphone usage policy. The majority of respondents (37.88%) said “Yes”, while 29.55% said they already had one. Surprisingly, 21.21% of respondents did not intend to implement such a policy, while 11.36% did not see the need for such a policy.

Below is a breakdown of the results of the poll and commentary on the topic of cellphone usage policy, including common law requirements and policy considerations.

Notwithstanding legislation, why is it important for employers to take this issue seriously?

When you allow employees to use cellphones while driving, and they conduct business at the same time, there is a serious potential risk for employers. The risk being: driver talking on cellphone has an accident ─ employer is sued.

The legal principle starts with the fact that a driver is at fault for causing an accident, and cellphone use is a factor. If there is any evidence that the call was made while the driver was conducting business or considered at work, or the call was work-related, the driver's employer could be held liable for damages resulting from the accident. Thus far, all of the cases on record where employers have been sued under this principle have taken place in the United States. Although there is no reported Canadian case on record, nonetheless, the principle of vicarious liability applies. This means that employers have been found liable for damages caused by the negligent or wrongful conduct of their employees acting in the course and scope of their duties. Whether the employee was acting in the course of his or her duties at the time of the incident is always a question of fact to be determined in each case.

While the courts in Canada have yet to deal with employer liability in this specific context, do not be surprised if a court finds the employer liable for an accident caused by driver inattention while talking on a cellphone.

The other factor in the ever-expanding list of U.S. court cases relates to the growing body of research that shows how dangerous talking on a cellphone while driving can be. Significant data is emerging that the use of cellphones increases the risk of motor vehicle accidents. Studies suggest that talking on a cellphone while driving is equivalent to being impaired (having a .08 blood alcohol level). In addition, several studies indicate that phone conversations impair driving performance by withdrawing attention from the visual scene, yielding a form of inattention blindness.

These studies suggest that driving while distracted is a big issue and can be as dangerous as other problems such as impaired driving.

At the same time, several studies have indicated that other activities, such as eating or applying makeup, are more distracting than using a cellphone.

Employers must take reasonable steps to avoid and eliminate their liability by ensuring that clear rules are in place to prohibit or sensitize employees about issues or incidents that may engage their liability. Case law examples abound where employers were successfully sued for not taking reasonable steps to deal with these issues or incidents.

An employer should consider promoting safe driving. This includes telling employees to:

  • Limit cellphone use while driving;
  • Pull over if receiving a call while driving;
  • Use hands-free devices and keep conversations brief;
  • Do not take notes or review documents while driving.

Employers can protect themselves by putting in place a policy that spells out what is acceptable cellphone use for employees.

This fear of liability and these policies do not apply only to cellphones but also to any electronic device, including pagers, PDAs, even laptop computers. Another factor to consider is that employers could be sued for illegal transactions made on a company-provided cellphone, or for activities such as harassment or threats made on a cellphone or other electronic communication devices that the employer has provided or allowed to be used during business hours.

Policy needs and considerations

While banning cellphone use completely is perhaps the easiest option to implement, this choice is also probably the least realistic.

Employers who want to ban or monitor how employees use cellphones while driving for work should establish a policy regarding the use of cellphones while on company business, providing employees with hands-free devices, and generally outlining safe cellphone practices.

The policy could state that:

  • Cellphone use is prohibited while driving during business hours while in the course and scope of their duties;
  • Employees are required to pull over if they are using a cellphone while in the car in the course and scope of their duties. To dial or otherwise initiate a call, or to respond to a call, the driver will leave the road and safely park the vehicle;
  • Using a cellphone while operating a vehicle is prohibited. Employees should plan calls to allow placement of calls either prior to travelling or while on rest breaks;
  • Cellphone use is prohibited while driving during business hours while in the course and scope of their duties unless using a hands-free device such as a headset or speakerphone.

Employees who choose to violate the policy would face disciplinary measures up to termination, or face legal responsibility if in the course and scope of their duties they are involved in a car accident and there is evidence that they were distracted because they were using their cellphone while driving, and the employer is sued.

Employers need to demonstrate that they are serious about the company's policy. The policy must be enforced consistently and fairly among all employees. For example, managers and supervisors should not be calling an employee who is driving; the company could not then say it has a policy in place restricting cellphone use.

In addition, employers should offer training as to how dangerous such cellphone uses can be and how drivers can adopt a cautious approach to cellphone use in a vehicle.