Employee distracted driving: implications for employers
By Kumail Karimjee
We all know that driving while texting, dialing or emailing on a smart phone is dangerous and, in Ontario, illegal. What many employers do not realize is that they can also be exposed to liability if an employee has an accident while using a company-provided cell phone in a dangerous way while driving.
The statistics are alarming.
According to a 2012 report by the U.S. Department of Transportation, in the U.S.:
- more than 100,000 drivers are texting at any given daylight moment;
- more than 600,000 drivers are holding phones to their ears while driving; and,
- drivers under 25 are two to three times more likely that older drivers to send text messages or emails while driving. Read Globe and Mail story
In 2009, the government of Ontario introduced new regulations under the Highway Traffic Act (HTA) prohibiting the use of hand-held devices while operating motor vehicles (subject to certain exceptions). By forbidding the use of handheld devices for texting, talking while holding a cell phone, dialing and emailing, the amendment aimed to reduce the dangers of distracted driving.
Implications for employers
Employers who provide vehicles or cell phones to employees and expect employees to be reachable by cell phone should consider the implications of the HTA and the growing research about the dangers of cell phone use and driving. This is happening in the U.S. where the U.S. Department of Transportation has encouraged companies to enact anti-distracted-driving employment policies. Further, in 2009 President Obama issued an executive order prohibiting federal employees from texting while driving government vehicles or while using government supplied cell phones while driving any vehicle.
To be clear, the law in Ontario does not directly impose liability on employers for their employees’ violations of the HTA — the HTA applies only to the person driving the vehicle. Nonetheless, employers could face civil liability (or claims for workers’ compensation benefits) for accidents caused by their employees while using hand-held devices for purposes related to their employment.
Consider, for example, the evolving area of employer host liability. It is now widely accepted that employers should take active steps to reduce the risk that an employee will drink and drive after an employer sponsored event. It is an open question whether there might be some liability placed on an employer that provides an employee with a cell phone, expects that employee to be available and to respond to calls and emails while on the road, and has not put any measures in place to discourage the use of cell phones in a way that is contrary to the HTA.
Employers should also keep in mind that they have general obligations under the Occupational Health and Safety Act to take every reasonable precaution to protect their workers’ health and safety.
In sum, even though the HTA does not impose fines on employers for their employees’ unlawful use of hand-held devices while driving, employers in Ontario would be well-advised to review the HTA and develop policies which prohibit their employees from using hand-held devices while driving except when used in the hands-free mode, for emergency calls, or when the vehicle is safely pulled off the road. Further, employers which fall within the temporarily exempt industries (commercial drivers in transport-related industries and public utility workers) should be mindful that January 1, 2013 is their deadline for compliance with the HTA.