Safety First and Last: Driven to distraction

Sometimes, people do not understand what exactly constitutes distracted driving. Using a phone to talk or text, read a map or to choose or a song is distracted driving. The easiest way to avoid distracted driving is to not use any devices while behind the wheel. Some exceptions are hands-free devices, or a mounted device like a GPS. Reading, applying makeup and using other electronic devices such as portable DVD players are also considered distracting to drivers. So far, eating, smoking, and changing the radio station have not been specifically defined as distracted driving.

According to the Criminal Code of Canada, anyone who has the authority to direct how another person works has a legal duty to prevent bodily harm to that person that arises from the work. Therefore, employers may face liability if an employee is injured or injures another while driving and using a hand-held device, if it can be proven that the employer did not take reasonable precautions to prevent such accidents.

In the leading case on employer liability for employee conduct (Bazley v. Curry), it was determined that employers are “ vicariously liable for (a) acts of employees that are authorized by the employer and (b) unauthorized acts that are related to conduct authorized by the employer.” Many American employers have been found liable for accidents caused by distracted driving by employees, sometimes with awards in the tens of millions. In Ontario, the case of Walker v. Ritchie resulted in an employer paying over a million dollars in damages after an employee who was found to be driving distracted caused an accident that resulted in catastrophic injuries to a 17-year-old girl. As the Canadian justice system and government starts to take aim at distracted driving, the numbers of employers being fined for employee conduct behind the wheel will no doubt increase.

The best form of protection is to ensure that you have a zero-tolerance policy in place that bans distracted driving in work vehicles or in personal vehicles being operated for work purposes. In the event of an accident, an employer needs to be able to prove due diligence. This can be done by developing a policy that explicitly states the expectations of the employer with regard to hand-held devices and driving. Have all employees review and sign off on the policy.

All employers who have employees that drive for any work-related purpose should have a policy in place that lists definitions, rules, and consequences for distracted driving.

• Direct staff to never accept or make calls while driving, unless hands-free capability is activated
• Ensure staff understand that there will be zero tolerance for reading or sending texts or emails while driving
• Have staff change voicemail notifications to indicate that they are driving, and will return calls when they are safely parked
• Emphasize that distracted driving is illegal
• Ensure hands-free capability where appropriate
• Follow up with disciplinary action where appropriate
• Direct staff that if a call must be taken or a text sent, that they absolutely must pull over safely before doing so.

Keeping your employees safe is your responsibility, and you must ensure that staff understand the impact of distracted driving. Is one text message, phone call, or email worth the consequences?

At the end of the day, no text message or phone call will ever be worth your life or the life of another, nor will it be worth the cost of losing your business. Workers want to return home at the end of the working day, safely and in the same condition which they arrived to work. One of the single most effective ways to ensure that employees drive safe is to ensure that distracted driving is understood to be a workplace hazard, and is treated as such. Thoughtful training and efficient policies and programs can help you to ensure that distracted driving is not a hazard in your workplace.