Owners of contracting businesses need to keep their employees away from their phones and tablets while driving, or potentially pay a heavy price.
Most people probably think of distracted drivers as those people that can’t stop texting about last night’s episode of Game of Thrones, or sports nuts checking up on their favourite teams or fantasy leagues. The RCMP includes any activities such as talking on a cell phone, texting, reading, using a GPS, watching videos, eating or drinking, personal grooming, adjusting the radio or CD player, driving while mentally or physically fatigued, and even talking to passengers.
But what about the contractor checking up on one of their jobsites? Or someone looking into when a shipment of materials is arriving? Or responding to a boss who demands prompt attention to queries? Or someone who runs a bulldozer into a pile of timber stacked up on a job site?
All of these scenarios could cause costly liability problems for either an individual contractor trying to stay connected during the day, or, more likely, the employer who has an employee have an accident.
How costly? Potentially business-crippling costly. Million-dollar judgments have been awarded to plaintiffs injured when drivers on the job, reaching for or talking on a cell phone, have struck and killed pedestrians or fellow drivers. A recent study by the U.S. National Safety Council estimates that on-the-job collisions cost employers more than US$24,500 per property damage crash, US$150,000 per injury and as much as US$3.6 million per fatality.
In Canada, motor-vehicle accidents are the second-most common workplace injury claim, according to B.C. lawyer Geoff Mason, of Kent Employment Law. Mason calls them “incredibly significant” amongst workplace injuries, mostly due to the quantity of claims.
And although you might think that a distracted driver should shoulder their own blame for an accident caused by their own inattention, the prevailing “no-fault” system currently puts the onus on employers.
Injuries to employees at work are generally covered by provincial workplace legislation, which in Ontario is the Workplace Safety and Insurance Act (WSIA). Under the WSIA, injured employees would make a claim for damages suffered at work, and if they chose to sue their employer independently of the WSIA assessment, courts will consider whether the employee contributed to the accident and assess financial liability accordingly.
However, if a third party is injured in a workplace accident, Canadian courts have consistently interpreted the law to treat employers as “virtual insurers” of safety. In fact, to the extent that when an employee is involved in a workplace incident that involves distracted driving, the employer is always scrutinized to ensure that the rules surrounding distracted driving were enforced, and will often be blamed if an employee causes an incident by being distracted.
“Businesses have an obligation to provide a healthy and safe environment,” Mason says. “There’s no distinction between a distracted driver injury and any other injury in the workplace. Employers must ensure that there’s a workplace free of distracting drivers.”
Ironically, with more and more employers now equipping their employees with tablets in an effort to raise productivity, they might be unwittingly providing their charges with more opportunities to be distracted on the job.
In fact, given that they have less control of their workplace, outside contractors pose an even greater liability threat to employers than their own employees. However, the more incidents a company must wrestle with will also affect the premiums it must pay to be covered for future events.
Mason suggests that the best way to limit a company’s liability against all of these claims is prevention. Companies need to establish strict guidelines against working while distracted, communicate these guidelines frequently in person, via email, and within training, and instruct company health and safety personnel to monitor the workforce to inspect and report on any violations of policy.
“The more clarity that you can give an employee of an expectation of what they’re allowed to do, the better your defense,” Mason advises.
Meanwhile, a study by Aegis Mobility has revealed that while 70 per cent of companies have developed policies intended to reduce distracted driving, only 32 per cent are confident that they are working. Yet a company can still be held liable and possibly bankrupted by legal fees and fines if it is determined that reasonable precautions had not been taken to prevent distracted driving, so having the policies in place is still better than having no posted guidelines at all.
“Businesses need to try to take sufficient step to prevent one of these things from happening,” Mason says.
Keep that in mind the next time you start getting agitated that an employee of yours has not immediately responded to your text or call.