We have all heard the statistics — driving while
talking on a cellphone increases the likelihood of a car
accident, even if you use a hands-free set. At the same time,
your employees have cellphones, BlackBerrys and other personal
devices, 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 if you allow this behaviour to continue. The following
questions and answers highlight those risks and outline what
your company can do to protect itself.
Q. Can employers 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 cellphone for work purposes. Employers can
also be directly liable when they have provided cars or
cellphones to employees and are aware that employees make
work-related calls while driving.
Q. Do employers face any occupational
health and safety liability?
A. Yes. It is possible that a court could
determine that an employer failed to take steps to protect the
health and safety of its employees if it did not warn them
about the dangers of talking on cellphones 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, when an accident occurs.
Q. What about workers' compensation
A. Depending on the nature of the
employee's workplace, it is 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.
Q. What can employers do to protect
A. Employers should have a policy that sets
out limitations on the use of cellphones or personal devices
(such as BlackBerrys) while driving. Although it may not
completely eliminate your liability, it can certainly help to
Q. What should be included in such a
A. Where legislation applies (see below),
the policy should include a statement outlining any illegal
talking and driving activities. Where legislation does not
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 will not be
disciplined for failing to answer his or her cellphone 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 cellphones 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
Q. What if the nature of our business
depends on employees being available by phone while
A. You will have to weigh the risk of
accident or injury against the demands of your business. You
may wish to consider more flexible work arrangements that allow
employees to do their driving when they are not expected to be
available by cellphone or e-mail.
Q. Have any Canadian governments banned
cellphone usage while driving?
A. Yes. For a number of years, the province
of Newfoundland and Labrador has imposed a full ban on using
cellphones while driving, and on April 1, 2008, laws came into
effect in Québec and Nova Scotia that prohibit the use
of hand-held cellphones while driving.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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