Regardless of what state your business is in, if you have employees who drive as part of their jobs, your employee handbook must address cell phone use. Drivers interacting with cell phones have a significantly higher risk of being involved in a crash, mostly caused by reaching for, answering or dialing a cell phone; and, according to the National Highway Traffic Safety Association, the risk of an accident is five times higher for drivers who are texting. With thousands of fatalities each year due to distraction-related accidents, and nearly half of all drivers admitting to reading texts or emails while driving, the risk is palpable.
Nationwide, lawsuits against companies whose distracted employees cause accidents is one of the fastest-growing areas of litigation. The focal point of corporate liability has been on whether the employer has a policy prohibiting cell phone use while driving. The argument to the jury – usually with horrific photos of victims, or injured people in wheelchairs in the court room – is that “if only the company had a policy, this might have all been prevented.” A rational reaction might be that there is no way to know this, and/or your state bans cell phone use while driving already. However, when faced with the known risk of using cell phones while driving and the reality of the damage caused, it is hard for a company to argue that they have a policy about misusing social media or vaping at work, but they did not think it important to ban cell phone use while driving.
Your Company Needs a Policy
Regardless of whether you issue cell phones to employees, or whether they are driving company vehicle, if your employees drive to perform their job duties, you know they have a cell phone, and you have to assume that they are using it to assist in their job duties. Therefore, you need a comprehensive cell phone policy to mitigate the risk of liability when they get in an accident. Here is a good example:
Employees are prohibited from using cell phones for work-related matters while driving. We are concerned for your safety and for the safety of others sharing the roadways, and using a cell phone while driving can lead to accidents. If you must have a work-related call while driving, you must wait until you can pull over safely and stop the car before placing your call.
What if the Employee HAS to Use Their Smartphone while Driving?
The foregoing works for employees who the company suspects are using their phone while driving, but what if the company knows they are doing that, or to make matters worse, the company either issued the employees the phones, or reimburses the employees for their personal phone use, because the employees have to use smart phones to navigate, access relevant apps, and contact customers while driving? In other words, how does a company protect itself in the gig economy (particularly if all its independent contractors are now deemed employees)?
First thing is – you still need a policy; it just needs to focus on hands-free cell phone use. No state (not even California) has banned adult, experienced drivers from using hands-free or blue tooth devices while driving. If you require employees to use smart phones, however, you need to provide or pay for appropriate hands-free equipment, and make sure employees are told how and where to set up their phone in their vehicle so as to minimize distraction from the wheel and the road (i.e. they need a mounting bracket that puts the phone on or near the top of the dashboard without occluding their view). Then check your state and local laws to make sure you are in compliance, and add language onto your cell phone policy similar to the following:
Employees are permitted to use hands-free equipment to handle calls and may use approved apps (but never that involve entering text manually) while driving, without violating this policy. However, safety must always be the first priority. Use of the phone must be minimized and must never distract you from driving. If for any reason, you are unable to concentrate fully on the road, you must discontinue use of the phone, pull over and safely park your vehicle before resuming use of your smart phone.
You cannot prevent car accidents, but you can take steps to keep your employees safe and to minimize the risk to your business when the inevitable happens.
Written by Todd Wulffson
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