Cell Phone Use: Hands-free is not Liability-free for Employers

by Laura Pokrzywa

The driver in front of you is all over the road — making hard stops, cutting corners, and even crossing the center line. The problem isn’t drugs, alcohol or fatigue. The problem is distracted driving. The distraction is the driver’s cell phone.

According to the National Highway Traffic Safety Administration, 3,477 people were killed and 391,000 were injured in motor vehicle crashes involving distracted drivers in 2015. Texting and talking on cell phone are leading causes of distracted driving. Since just about everyone has a cell phone these days, the problem seems to get worse every year. In response to the rising risks, in 2010 and 2011 Federal law banned commercial truck drivers, bus drivers, and drivers transporting hazardous materials from using hand-held cell phones and messaging on electronic devices. Many states and municipalities have also taken action to try to reduce the statistics. Today every state but one (Montana) has some kind of law restricting cell phone use by drivers. For example: text messaging is banned for all drivers in 47 states (up from 35 states just 2 years ago). The use of handheld cell phones has been banned for drivers in 15 states (up from 9 states 2 years ago) and more states are considering similar bans.

None of these state laws specifically define an employer’s responsibility concerning company-owned vehicles, cell phones or an employee using a personal phone to conduct company business while operating a vehicle. Though the use of hands-free devices remains legal in all states, the laws do little to limit an employer’s liability.

Hands-free or not, if one of your employees is involved in an accident while using a cell phone to conduct company business, you may be liable. According to the National Safety Council (NSC), employers can and have been held liable for actions that are actually allowed by federal regulation and individual state laws. In fact, the NSC says employers are being held liable up to $25 million for employee crashes, even when employees use hands-free devices.

Establishing a company policy that prohibits drivers from using a hand-held device will not remove liability completely, nor will it guarantee that your drivers won’t have other distractions, but it will go a long way in protecting you and your employees.

In their publication, Employer Liability and the Case for Comprehensive Cell Phone Policies, the NSC says, “Employers who expect employees to use cell phones while driving as part of their business must recognize that doing so exposes their employees to preventable crash risk.” In fact, the NSC recommends that employers go further than state laws and prohibit the use of hands-free devices while driving.  It goes on to recommend, “The best action for employers is to implement a total ban policy that includes handheld and hands-free devices and prohibits all employees from using cell phones while driving.”

Whatever your company’s policy, it must, at a minimum, clearly require compliance with applicable state laws. You can find more information about specific state’s laws by visiting the Insurance Institute for Highway Safety website or by contacting your state’s office of highway safety.

If you need assistance with your cell phone or safety policies, please contact East Coast Risk Management at 724-864-8745. We have safety and human resources professionals ready to help.

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