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Trend carries significant peril for employers
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As smartphones and tablets become ubiquitous, multi-tasking behind the wheel has been gaining notice as a grown-up workplace danger rather than the sole province of reckless, texting adolescents.
Along with the risks to life and limb, the trend carries significant financial perils for employers.
A worker who causes an accident while reading e-mail or texting on the job can expose an employer to millions of dollars in liability for loss of life, in addition to the costs of property damage and lost productivity.
Safety advocates and the government, alarmed over the prevalence of employee use of mobile phones on the highway, are pushing companies to adopt distracted-driving policies that ban the use of electronic devices while operating a vehicle.
“This is a new universe of risk,” Douglas Horn, an Independence, Mo., lawyer and founder of new driver safety organization Drive by Example, said in a recent interview.
While teen texting is a problem, adolescents make up a relatively small percentage of drivers and aren’t engaged in the business functions that many adult employees are, Horn said. As the iPhone and other app-filled smartphones have swept the consumer market in recent years, “previously safe drivers” have been turned into risky multi-taskers, he said.
Wanted: Phone Policies
While airlines, railroads, and trucking and bus companies may be accustomed to focusing on transportation safety, businesses without large fleets may not have needed to give much thought to the topic until now. They have strong incentive to do so.
The National Safety Council (NSC) recommends that employers design cell phone policies “to follow best safety practices, reduce significant risks and minimize liability,” including bans on using hand-held and hands-free devices while driving for all employees, all company vehicles, all company mobile devices and all work-related communications.
Under a legal theory called respondeat superior, or “vicarious responsibility,” an employer may be held liable for negligent employee activity if the worker “was acting within the scope of his or her employment at the time of a crash,” a concept that has been liberally defined in court cases, the nonprofit group says.
Use of a cell phone while driving quadruples the risk of a crash, according to the AAA Foundation for Traffic Safety. While 94 percent of drivers agree that it’s unacceptable to text or send e-mail while driving, more than one-third of drivers reported in a 2011 survey that they had texted or e-mailed while driving during the previous month.
Distracted driving has caught the attention of state and federal policymakers. As of September 2012, 39 states, Washington, D.C., Guam and the Virgin Islands have banned text messaging for all drivers, and talking on a hand-held mobile phone while driving is banned in 10 states, D.C., Guam and the Virgin Islands, according to the Governors Highway Safety Administration.
Experts note that texting is but one of many distracting behaviors that occur behind the wheel. However, the federal government considers it especially alarming because it requires a driver’s visual, manual and cognitive attention.
The federal Department of Transportation and the Occupational Safety and Health Administration (OSHA), together with safety advocates, are promoting an anti-texting-while-driving campaign aimed at employers.
In addition, U.S. regulatory agencies have issued rules that take aim at electronic distractions among commercial vehicle operators under their jurisdictions. In 2009, President Barack Obama issued an executive order prohibiting federal employees from text messaging while driving on the job and in government cars and trucks.
“It is well-recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving,” OSHA states in its anti-texting materials.
Feds Crack Down
OSHA says it will investigate credible complaints of employers requiring texting while driving and, if necessary, cite and penalize offending companies.
Among other federal agency moves, the National Transportation Safety Board (NTSB) in late 2011 called for a nationwide state-level ban on driver use of portable electronic devices behind the wheel. The NTSB noted numerous distracted-driving incidents, including the 2008 Chatsworth, Calif., collision of a commuter train and a freight train after the commuter rail engineer ran a red signal while texting. The crash killed 25 people and injured dozens more, prompting the Federal Railroad Administration to ban rail employees from using mobile electronic devices on the job.
The Federal Motor Carrier Administration, meanwhile, banned all hand-held mobile phone use by commercial drivers in late 2011.
Penalties Pile Up
The NSC, in a 2012 report on corporate liability for distracted driving, cites several cases, including a 2007 fatal crash in which the driver and the company that owned the vehicle were found liable for nearly $22 million after testimony indicated that the employee may have been on a personal cell phone call at the time.
In another case, a lumber company settled for $16 million—the combined limits for employer and employee insurance policies—after a salesman talking on his cell phone rear-ended a vehicle and disabled an elderly woman, the NSC report stated.
And in Illinois, a state trooper responding to an accident exceeded 120 mph on a highway while talking on the phone to his girlfriend and using e-mail before losing control of the squad car, the NSC said. The resulting crash killed two teenage sisters, whose family was awarded $8 million, and injured a couple in another vehicle, the report said.
The NSC offers a free cell phone policy kit for employers wanting to implement or improve their distracted-driving policies.
“Can you believe the amount of increased exposure for corporations that thought they didn’t have exposure?” Horn said. He encourages businesses to add distracted-driving prevention campaigns to their corporate wellness programs.
Horn believes anti-texting laws and various apps on the market aimed at preventing distracted driving aren’t enough. The laws don’t necessarily extend to all mobile-device activity on the road, and the apps—some of them employer-controlled—have their limits as well, he said.
Horn believes overcoming distracted driving will require the same sort of cultural shift that resulted in widespread seatbelt use. Those with a financial incentive to promote highway safety—insurers and employers—“can really make a difference and spike cultural change,” he said.
Dinah Wisenberg Brin is a freelance journalist based in Philadelphia.
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