Employees driving under the influence — of a cellphone

U.S. cases are a warning employers should be wary of liability if employees use a cellphone for business while behind the wheel

Cellphones can cause impairment

There has been much discussion lately on drivers using cellphones and other communication devices while operating a motor vehicle. Some jurisdictions have taken the step of prohibiting the use of anything except hands-free devices while driving, while others are thinking of banning them entirely for those behind the wheel.

Studies have shown using cellphones can distract a driver’s concentration and therefore have a similar impairment effect as alcohol. With the prevalence of cellphones and other devices in the course of day-to-day business, this raises the concern for employers who have employees using them while on the road.

Some recent cases in the United States have laid the blame for car accidents where the driver was making a business call on the employer. Much as they can be liable for allowing employees to drive impaired from a work event, employers can now be liable for letting employees be impaired from a cellphone used for business purposes.

There haven’t been any significant cases in Canada yet, but many jurisdictions are looking at banning hand-held devices while driving. If employees get into car accidents while on the phone making business calls, Canadian employers may very well find themselves in the same predicament as some of their American counterparts.
Cellphones have become as much a part of business as the laptop. Many people couldn’t imagine being without a cell in their hand or by their side — let alone not having one at all.

The explosion in the use of cellphones has allowed people to do business faster and from anywhere across the country or around the world. It has also helped create the expectation that employees should fill every hour with productive work. This includes in the car while driving, perhaps even text messaging or typing on their BlackBerry while behind the wheel.

These are very dangerous practices — for drivers, pedestrians and, potentially, for employers. Several court decisions in the United States have awarded large settlements to victims of car accidents where the driver was using a cellphone for business. In some of these cases, the driver’s employer was held liable and had to pay millions of dollars in damages.

As bad as drunk driving

Some Canadian provinces and U.S. states have instituted (or are considering) laws to ban hand-held cellphone use while driving. However, research suggests this may not be enough.

A study published in the British Medical Journal found that drivers talking on a cellphone are four times more likely to be involved in a serious crash. Surprisingly, this was the case whether the driver was using a hand-held or hands-free phone.

In another study, Utah psychologists concluded that using a hands-free cellphone while driving could impair drivers as much as having a blood-alcohol level of 0.08 per cent, which is the maximum legal limit in Canada. Motorists using cellphones in the Utah study were slower to brake, varied their following distance and were more likely to crash. Three participants even rear-ended the simulated pace car.

The kinds of conversations drivers have can impair them in different ways as well. A short discussion about picking up some milk on the way home is unlikely to cause much distraction. A heated debate with a co-worker or client, however, can throw off one’s concentration well after the call has ended.

Cases and consequences in the United States

Most employers know they can be liable if an employee gets in a car accident after drinking alcohol at a staff event. Many aren’t aware, however, they can also be held liable if an employee gets in an accident while driving and using a cellphone on the job. There aren’t any Canadian cases on this issue — yet. There have been several American cases, though, that should cause all employers to review their policies to limit liability.

These include:

•in 2001, a Miami jury found a lumber company liable for more than $20 million in damages after one of its employees struck another car while making a sales call on his cellphone;
•in 2001, the State of Hawaii was ordered to pay $1.5 million US in damages after a state teacher who had just completed a call on her cellphone struck a pedestrian while driving to work; and
•in 2004, an employer agreed to pay $5 million US to settle a civil action involving a car crash where its employee was using his cellphone for business while driving;

In another tragic case in 2004, a Virginia court awarded $2 million US to the family of a 15-year-old who was struck and killed by a 33-year-old lawyer driving her Mercedes on a county road. The lawyer was on the phone at the time. After hitting the teen the lawyer fled the scene, thinking she had struck a deer.

The family named the lawyer’s firm as a defendant in the case, and they settled for an undisclosed amount. The lawyer served one year in jail, was fired from her firm, lost her law license and later filed for bankruptcy.

What employers should remember

In some of these cases, the employer provided the cellphone to the employee. In others, the employer encouraged, or at least condoned, the employee’s use of a cell for business purposes. They knew or ought to have known its workers would be using it while driving. Employers and drivers should also remember that whenever a cellphone is used, there is a record of the call that’s made. A look at a monthly bill reveals the details. This information can be very useful to police in placing negligent drivers at the scene of a crime.

What employers should do

These court decisions have pushed many employers to act. Some, such as engineering services company AMEC PLC at all of its North and South American locations, have instituted policies prohibiting employees from using cellphones while driving on company time, ranging from a complete ban to cautious use. Others are providing training to workers, such as the Halifax Regional Municipality’s 90-minute sessions educating employees on the dangers of cellphone use while driving and reviewing its policy. Policies don’t eliminate liability for employers, but they can certainly help.

No employer would knowingly permit an employee to drive with a blood alcohol level of 0.08 per cent. So why let someone drive who’s under the influence of a cellphone? Based on recent scientific studies and court decisions, the only safe approach for an employer is to have their employees keep their eyes on the road and the cellphone turned off.

Russel Zinn is a senior partner in the employment and labour group at Ogilvy Renault in Ottawa. He can be reached at (613) 780-8672 or rzinn@ogilvyrenault.com.
Jurisdictions banning cellphone use

Currently, Newfoundland and Labrador is the only jurisdiction in Canada where using cellphones while driving is legally prohibited. Under the law, which has been in effect since April 2003, offenders are subject to a fine of up to $180. Twenty U.S. states have implemented full or partial bans, with discussion taking place in several others. Here are other countries where cellphone use while driving isn’t allowed:

Czech Republic
Hong Kong
Isle of Man
Slovak Republic
South Africa
South Korea
United Kingdom

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