I Can’t Talk, I’m Driving

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By now most of us know that it is no longer lawful in BC to use hand held cell phones and PDA’s while driving. The new regulations also include rules about the use of televisions, MP3s and other devices that require ear phones. On February 1st, fines and penalties went into effect.

Before you think this legislation has dealt with the safety issue, consider the following statement in the Distracted Driver discussion paper, published last year by the Province: “Drivers fail to process approximately 50 per cent of the visual information in their driving environment when they are using electronic communication devices.  Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use.” 

Many employers have employees who drive, either as a direct part of their duties or incidentally to their job. Most of those employees have a cellular phone and/or a PDA.  Collisions involving employees can result in substantial costs to employers through increases in WCB premiums, assessments and impacts on the employer’s “experience ratings.” 

Employers also face an increased risk of being liable to others on the road for accidents caused by their employees using cell phones/PDA’s while driving, even if the employees are not expressly driving for work purposes. In several U.S. cases, employers have been found liable for collisions caused by employees who were driving while using a PDA/cellular phone provided by the employer.

Some examples of where an employer could become liable

•    a delivery driver in a company vehicle using her cellular phone while driving
•    a sales representative in his own car taking a call from the office on his way to a sales meeting
•    an executive in her own car sending an email to her assistant while driving home at night.

In addition, employers may also face liability to the employee for creating an unsafe work environment if the employer requires an employee to be available to take calls when driving.

In my opinion, there are a number of reasons employers should have a cell phone policy: it ensures employees understand how to comply with the new laws, minimizes potential third party liability, and perhaps most importantly, allows employers to be proactive on this important safety issue.  In light of the research on distracted driving, employers would be well served by banning all forms of cell phone use (including hands-free) while operating a moving vehicle.  A cell phone/PDA policy would also allow an employer to deal with another related health and wellness issue by confirming that employees are not expected to be ‘plugged in’ or available for work at all hours of the day.

What should the policy say?

A policy need not be complicated or lengthy. At a minimum, however, the policy should include the following:
•    a clear statement of the new law and what it prohibits,
•    a clear statement of the safety risks,
•    a direction to employees on what to do and what not to do (for example: do not use while driving, if necessary to make or receive a call pull over to a safe location),
•    a direction to managers to ensure compliance, including a direction to not call an employee if one knows the employee is driving, and
•    a clear statement of the consequences for breach of the policy.

As with all policies implemented by employers, a policy on PDA/cellular phone use while driving will only be effective if it is supported by senior management, clearly communicated, and enforced consistently.  

This blog is written by Nicole Byres of Clark Wilson LLP and made available by BCBusiness to provide general information on employment law, and is not a substitute for competent legal advice from a lawyer licensed to practice in your jurisdiction. Neither the reading of this blog, nor the sending of unsolicited comments or emails creates a lawyer-client relationship with the writer or Clark Wilson LLP.