Employers impacted by cellphone ban for drivers

Behind the wheel with Bill 118

It may have been a long time coming, but Ontario has followed the lead of some other Canadian provinces and several American states by addressing the somewhat controversial subject of cellphone use while driving. On April 23, 2009, the Ontario legislature passed Countering Distracted Driving and Promoting Green Transportation Act, 2009 (Bill 118), which will impact employers carrying on business in Ontario.

Employment lawyers Michael Fitzgibbon and Kate Zavitz take an in-depth look at what this recent development means for employers who have employees who drive as part of their job and what action employers should take to protect themselves and their employees.

The use of cellular phones and other portable digital assistant (PDA) devices while behind the wheel has generated considerable discussion. A study released by Industry Canada in 2006 showed the prevalence of cellphones in Canadian society, as the number of households with a cellphone nearly tripled from 22 per cent to 59 per cent from 1997 to 2004. At the end of March 2006, there were 16.8 million wireless subscribers in Canada. Not only has the rate of wireless subscribers increased steadily over time, but the number of wireless billed minutes per subscriber also nearly tripled between 1997 and 2006. Canadians use their cellphones for more than telephone calls: The number of text messages in Canada skyrocketed from 174 million in 2002 to 1.5 billion in 2005.

A May 2008 study conducted by Nationwide Mutual Insurance, Driving while Distracted Public Relations Research, reached some interesting conclusions regarding cellular phone use while driving:

•About two in five cellphone owners have a hands free device for their cell phone.

•Eight in ten (81 per cent) cellphone owners say they talk on their cellphone while driving. Comparatively, about one in five (18 per cent) report they send text messages while driving.

•More than six in ten (64 per cent) cellphone owners in the National Sample of Drivers report they are expected to be available by cellphone at all times, with 28 per cent feeling pressured to be available by cellphone at all times, including while driving.

•The most common reasons for multi-tasking were “to address urgent work or school matters” (48 per cent) and “to stay connected with work or school” (41 per cent).

A 1997 study that reviewed the cellphone records of 699 Toronto drivers who had been involved in non-injury traffic accidents found more than 24 per cent had been using their cellphones within a 10-minute period preceding their accident. Another report by the University of Utah in 2003 found people are as impaired when they talk on a cellphone while driving as they are when they drive intoxicated at the legal blood-alcohol limit. The Ontario Medical Association recommended in September 2008 that the Ontario government take action to curb the use of cellphones while driving.

The effect of Bill 118

Bill 118 addresses the issue of “distracted driving” by prohibiting any person from:

•Driving a motor vehicle on a highway if the display screen of a television, computer or other device in the motor vehicle is visible to the driver.

•Driving a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

•Driving a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

There are a number of important exceptions to these prohibitions. Most importantly, they do not apply to a display screen of an instrument used to provide information regarding the status of the vehicle. In addition, the prohibitions do not apply to a global positioning system (GPS) navigation device while being used to provide navigation information or to the use of a cellphone to call emergency services.

Furthermore, a person may drive a motor vehicle on a highway while using a wireless communication or handheld electronic device while in hands-free mode.

What does the law mean for employers?

Lawyers representing persons injured in car accidents in circumstances where the driver was using a cellphone at the time of the accident have taken to suing not only the driver that caused the injury but also his employer. To date, the most publicized cases have arisen from the United States, although there is no reason to think such claims are uniquely American.

In Yoon v. Wagner, a Virginia lawyer, Jane Wagner, accidentally killed a 15-year old girl who was walking alongside the road. Yoon’s family brought a wrongful death claim against Wagner and her employer. It was alleged Wagner was driving erratically and had been using her handheld cellphone conducting business at the time of the accident. Following a jury trial, the Virginia court ruled against Wagner in the amount of $1.9 million US. The employer’s insurer settled the case prior to trial for an undisclosed amount.

What can employers do?

A number of Canadian employers are already attempting to limit their exposure through the development and distribution of safe driving policies that reflect the legislation in jurisdictions where their employees conduct business for the company. Even in those jurisdictions where legislation does not exist, many employers have proactively addressed the risks of using wireless communication and entertainment devices while driving through policies.

A policy should set the parameters of acceptable use of portable technologies while driving. For example, it might provide that employees are not to use wireless communication or electronic devices of any type while driving. Wireless communication devices would include, but would not be limited to, cellular phones, PDAs, GPS, text pagers, two-way radios and portable music players. The employer will have to decide whether it wishes to exclude hands-free devices — assuming this is permissible under applicable legislation — or not. Some policies expressly prohibit any use of wireless communication or electronic devices while driving and require, under policy, that the driver pull over to take or make any calls.

To a large degree, the scope of the policy will be determined by applicable legislation. Where no legislation exists or where there are exceptions, the employer will have to assess what level of risk is acceptable and develop a policy accordingly.

In the end, Bill 118 and other similar legislation will have an impact on employers and employees. It is important for the employer have a clear understanding of the “rules of the road” in those jurisdictions in which it carries on business and communicate its expectations to employees through policy. Setting aside the practical issues of enforcement and the limits on policy as a complete shield to liability, a policy to address legislation like Bill 118 is good business sense and one most employers should consider implementing.

Michael Fitzgibbon is a partner practicing management-side labour and employment law at the Toronto office of Borden Ladner Gervais LLP. He can be reached at (416) 361-7365 or [email protected].

Kate A. Zavitz is an associate in the Toronto office of Borden Ladner Gervais and practices in the areas of labour and employment law and education law. She can be reached at (416) 367-6535 or [email protected].

Cellphone bans in Canada and United States

The following North American jurisdictions have outlawed the use of cellphones and other personal electronic devices while operating a motor vehicle: