Whether Hands-free, Handheld, Texting or Talking, Distracted Driving Is Deadly

Managing Risk and Limiting Liability

The modern workplace includes the mobile office, and distracted driving is a recognized hazard, if not an extremely dangerous problem. Toward this end, an employer has a duty to exercise reasonable care to control the activities of its employees when they are acting on behalf of or for the company and/or are using an employer’s “chattel.”

To develop a reasonable mobile-device safety program, companies should start a thoughtful, deliberate discussion with key corporate stakeholders–from accounting to legal to management to staff. The conversation should focus on the risks and utility of mobile-device use for that company. What works for one company may not work for another. The factors to consider include, among others, the company’s footprint, resources, safety culture and risk tolerance. The Itasca, Ill.-based National Safety Council warns, “employers should set policies that exceed existing rules, regulations and laws.” The practical goal is to limit distracting behaviors; the aspirational goal is to eliminate them.

For a template safety program, employers should review ANSI Z15.1. While this is a voluntary standard, it informs the standard of care. Z15.1 was intended “to assist organizations in defining and developing an effective safety and risk management program for managing motor-vehicle operations.” It applies to all “licensed motor vehicles designed to be operated primarily on public roads.”

Under Z15.1, companies “shall” have a written safety program that includes these key elements:

  • Safety policy
  • Responsibilities and accountabilities
  • Organizational safety rules
  • Orientation and training
  • Regulatory-compliance management
  • Management-program audits

The language of Z15.1 does not ban the use of mobile devices while driving, but the sample policy appended to Z15.1 does. It prohibits texting and states because “hands-free devices do not necessarily reduce [the] risk … [of] cognitive distraction associated with a cell phone conversation”, employees may not use cell phones (including hands-free) or any other mobile electronic devices while operating a motor vehicle.

As drafted, the sample policy applies to personal vehicles and any vehicle owned, leased or rented by the company. It also extends to the use of any mobile device provided by the company while “driving your own vehicle on personal business.” The Z15.1 sample policy also requires that the employee modify his or her voicemail greeting to state he or she is unavailable to answer calls or return messages while driving.

Z15.1 also requires companies know the legal landscape and implement a “system of responsibility and accountability,” including a process for hiring safe drivers, performing appropriate background checks, conducting a periodic review of state motor-vehicle records, training employees, establishing effective disciplinary procedures, and implementing “an auditing process that monitors compliance” with the company’s program and policies. This monitoring process should “help ensure the driver is following organizational procedures.” It can be accomplished by direct observation, records review, telematics monitoring and/or other active or passive controls. (For guidance about choosing active and passive controls, see “Monitoring Solutions for Safe Driving,” on page 4 of this post.)

With an ever-increasing number of tragic accidents and a mountain of confirming science, the issue of distracted driving has taken center stage. Companies that merely expect employees comply with federal regulations and state laws will not be absolved of liability, nor will they be shielded from a bankrupting verdict. This is every company’s wake-up call to develop and enforce a reasonable mobile-device safety program.

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About Matt Howard

Matt Howard is chief marketing officer at Aegis Mobility, Burnaby, British Columbia, Canada. He collaborated with a law firm specialized in defending corporate clients in complex litigation matters.

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