Employers may need to adjust policies, buy new equipment for workers on the road
Employers that are used to having employees check in or conduct other business while on the road may have to make a few changes once a new Ontario law banning the use of cellphones and other handheld personal devices while driving comes into effect.
The Ontario government recently passed Bill 118, the Countering Distracted Driving and Promoting Green Transportation Act, 2008. Once the new act comes into force — expected to happen this fall — it will be illegal to use cellphones and most other personal electronic devices with display screens while behind the wheel of a moving car.
With so many people using electronic devices, most employers will be affected by the ban in some way, said Michael Fitzgibbon, a partner in the Toronto office of Borden Ladner Gervais who practices labour relations and employment law.
The obvious employers affected are those with workers required to be on the road as part of their job duties, such as transportation companies and businesses with travelling sales representatives.
However, since the ban does not apply to devices used with hands-free technology, it’s likely employers will just have to ensure employees are supplied with that technology along with their cellphones and personal digital assistants (PDAs), rather than changing the way they do things, said Fitzgibbon. The availability of employees on the road won’t change, just how they handle the need for communication with employers and customers.
“I don’t necessarily see (the ban) changing the way companies do business, just the equipment they give their employees to do it,” said Fitzgibbon.
In addition, by supplying employees with Bluetooth or other hands-free technology, employers will need to train employees on how it is used. It’s also important to implement clear policies that require employees to either pull over or use hands-free devices, as well as make employees understand the implications of not doing so, said Fitzgibbon.
Employers could be held liable in accidents
It is important to ensure employees follow the restrictions of the ban because, if an employee gets into an accident while performing her work duties and is found to be violating the ban, the employer could face liability.
Though the employee as the driver would face charges under the Highway Traffic Act and possibly the Criminal Code, if serious enough, the employer could be vicariously liable in an accident, said Fitzgibbon. The same could be the case even if the accident happens after normal work hours if the employee is expected to do some work-related duties, such as checking voice mail, outside of work hours.
“If there’s an expectation to perform work because there’s a requirement (from the employer), there might be exposure, though it remains to be seen how broad,” he said.
Even after employees are provided with hands-free technology, training and a clear policy, regular observation and checking in to ensure employees are following the policy is recommended, said Fitzgibbon.
Bill 118 amends Ontario’s Highway Traffic Act by adding a section that prohibits anyone from driving a motor vehicle “that is equipped with, carries, contains or has attached to it a television, computer or other device with a display screen” if the driver can see the screen. The ban includes cellphones and electronic entertainment devices such as iPods and other MP3 players.
Certain devices such as global positioning system devices, commercial transportation tracking devices and collision-avoidance system devices are exempt from the ban, as long they are not used for any purpose other than their primary use.
The ban also does not apply to people driving emergency vehicles such as ambulances, fire department vehicles or police, as well as drivers using their cellphone to call emergency services.
Employers taking proactive approach
There have not been any cases in Canada as of yet where an employer faced liability because of an employee getting into a car accident while using a wireless electronic device behind the wheel, but employers are moving to protect themselves and employees from this type of situation, said Fitzgibbon.
A number of businesses have taken a proactive approach towards cellphones and PDAs used by employees on the road and have already implemented or sought advice on policies in advance of the ban, he said.
In particular, employers with offices in other jurisdictions that have already enacted similar laws — including Quebec, Newfoundland and Labrador and Nova Scotia — already have company-wide policies that just need tweaking to meet the Ontario standards. The Ontario legislation will raise more awareness of the issue and more employers will follow, said Fitzgibbon.
“The new law has a broad application because of the widespread use of technology in business,” he said. “Almost every employer is affected.”
Though the new law has been given royal assent, it is not expected to come into force until the fall, so those affected have an opportunity to adjust to its restrictions.
