Northern Exposure

Beware Liability When Workers Talk on Phone While Driving

by Karen Sargeant
former of McCarthy Tetrault

We have all heard the statistics (and it’s no surprise!) — driving while talking on a cell phone increases the likelihood of a car accident even if you use a “hands-free” set. At the same time, your employees have cell phones, iPhones, BlackBerries(R) and other personal data assistants (PDAs), which you know they use while commuting to and from work or while out and about on business. What’s worse, they may use these devices for company business, such as participating in conference calls or calling customers while driving.

Employers beware — you face significant risks under Canadian law if you allow this behavior to continue.

The following questions and answers highlight those risks and outline what your company can do to protect itself.

Q. Can employers in Canada be held liable for accidents caused when their employees are driving while talking on a phone or e-mailing?

A. Yes. Employers can be found liable in a number of ways. Employers can be vicariously liable for the acts of their employees when an employee is driving on work time or talking on a cell phone for work purposes. Employers can also be directly liable when they have provided cars or cell phones to employees and are aware that employees make work-related calls while driving.

Q. Do employers in Canada face any occupational health and safety liability?

A. Yes. Under provincial health and safety legislation, employers have a positive duty to take reasonable steps to protect the health and safety of employees. It’s possible that a court could determine that an employer failed to take steps to protect the health and safety of its employees if it didn’t warn them about the dangers of talking on cell phones while driving or, worse yet, actively encouraged employees to have phone conversations while driving. A good example of such a risk would be participating in a conference call with an employee while he or she is driving and an accident occurs.

Q. What about workers’ compensation liability?

A. Depending on the nature of the employee’s workplace, it’s possible that a workers’ compensation tribunal could determine that an employee conducting business while driving to a customer site is “at work.” As a result, any injury arising from a car accident during such time could be determined to be an injury arising out of and in the course of employment. The result could be workers’ compensation to the employee and increased premiums or assessments to the employer.

Q. What can employers in Canada do to protect themselves?

A. Employers should have a policy that sets out limitations on the use of cell phones or personal devices (such as BlackBerries(R)) while driving. Although it may not completely eliminate your liability (especially if the company doesn’t enforce the policy or train employees on the policy), it can certainly help to reduce it.

Q. What should be included in such a policy?

A. Where legislation applies (see below), the policy should include a statement outlining any illegal talking and driving activities. Where legislation doesn’t apply, the policy should include a statement of the type of telephone or personal device activity, if any, that is permitted. You may wish to include a statement inviting employees to decline to participate in conference and other business calls if they expect to be legitimately on the road at that time. You may also wish to include a non-reprisal provision, which makes clear that an employee won’t be disciplined for failing to answer his or her cell phone or participate in a conference call when he or she is driving.

Q. Should an employer’s policy completely ban talking on the phone while driving?

A. The type of activity banned in a policy will depend on the nature of your organization and your company’s risk tolerance. A very strong policy may completely ban the use of cell phones or personal devices by all employees while driving on company time, driving a company vehicle, or conducting company business. A more liberal policy may recommend that employees take certain precautions when talking on the phone while driving, such as keeping calls short or pulling over to the side of the road before taking or making a call.

Q. What if the nature of our business depends on employees being available by phone while driving?

A. You will have to weigh the risk of accident or injury (and potential liability) against the demands of your business. You may wish to consider more flexible work arrangements that allow employees to do their driving when they aren’t expected to be available by cell phone or e-mail.

Q. Have any Canadian governments banned cell phone usage while driving?

A. Yes. For a number of years, the province of Newfoundland and Labrador has imposed a full ban on using cell phones while driving. On April 1, 2008, laws came into effect in Québec and Nova Scotia that prohibit the use of hand-held cell phones while driving. At present, the Ontario government is considering similar legislation.

With the popularity of iPhones, BlackBerries(R), and other devices, employees are able to engage in business activities away from the office. However, employers should understand that their obligations to their employees don’t end once employees leave the office. Employers should therefore consider this issue seriously and, in particular, consider adopting a policy or practice that may help reduce or avoid accidents and the company’s resulting potential liability.

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