Cell phone use has become commonplace, and text messaging, e-mailing and conducting business via cell phone have become routine. While the convenience of cell phones can be enormous, problems arise when using a cell phone while driving.
A Nationwide Insurance poll found that 81 percent of cell phone owners admitted to talking on a cell phone while driving. While employers may be aware of the obvious benefits of allowing employees to use cell phones to conduct business while driving, they may be unaware of the significant liability risks associated with cell phone use while driving. A National Safety Council survey found that of employers who had a cell phone driving policy, 70 percent saw no decrease in productivity and over 20 percent saw decreases in employee vehicle crashes.
Currently, there is mounting evidence supporting the dangerous link between cell phone usage and car accidents. According to Johns Hopkins University, as individuals focus on listening and engaging in conversation, the activity in the visual part of the brain decreases, even when using a hands-free device. In addition, the University of Utah found that drivers are as impaired on a cell phone as they are while driving under the influence of alcohol. The National Safety Council found that 28 percent of car crashes (1.6 million crashes per year in the U.S.) are attributable to cell phone use while driving.
As a result, if you have employees driving on company time, you need to be aware of your cell phone use exposure and take the appropriate steps to mitigate your risks.
Case Studies
In 2004, a Georgia employee making a business call while driving hit and caused serious injury to another driver. The employee's company agreed to pay $5 million in damages after the court found that the company was liable since the employee was making a business-related call. In a different case, two million dollars in damages were awarded to a little girl's family after an employee hit and killed her in 2004. The family also sued the employee's company after phone records revealed that the employee was talking to a client at the time of the crash.
In addition to third-party claims resulting from accidents, employers increasingly face claims by employees for health problems allegedly stemming from cell phone use. Although the science appears contradictory and inconclusive, some employees contend that the radio frequency radiation emitted during cell phone usage may lead to various forms of brain cancer or other illnesses. Employees who use cell phones while on the job have begun to file Workers' Compensation claims and lawsuits based on this theory.
Minimizing Employer Liability
While there is no guaranteed defense to liability, developing an appropriate employee cell phone use policy, training employees about the dangers of talking on a cell phone while driving, and enforcing policies with signed written acknowledgments from employees all can help to limit an employer's potential liability.
In the policy, beyond setting clear-cut rules limiting cell phone use while driving, offer suggestions such as informing clients of driving schedule to avoid calls while on the road, pulling over to place or receive an important call, or asking a passenger to handle cell phone usage. Be sure to emphasize that while productivity is certainly important, more important is their safety and the safety of others on the road – safety that is neglected when using a cell phone.
Even with a comprehensive cell phone use policy, courts may still hold employers responsible for any harm caused by employees while on company business, so it is important to ensure that your policy is being upheld and enforced. Be clear about the importance of following the policy, and follow through with consequences if employees are found to be disobeying it.
State Laws
Several states currently ban the use of hand held cell phones while driving, and many states have taken an increasingly active role in addressing the relationship between driver cell phone use and traffic safety. These laws are changing frequently, so employers should always be cognizant of their state's laws and require employees to observe those regulations regarding cell phone use while driving (include the current state law in your policy, and require employees to review and re-sign it whenever the law changes). While state laws do not directly address employer liability, they have the potential to increase employer exposure for cell phone-related accidents. For more information about state requirements, access the Governor's Highway Safety Association Web site at: http://www.statehighwaysafety.org/.
What should you do?
In addition to updating your company Cell Phone/Hand Held Use Policy and training program, employers should also review their insurance policies. For help assessing your company's risk regarding employee cell phone use or for assistance in developing a Cell Phone Use Policy, contact Michelle Keller.
This Risk Insights is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.
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