Accident victims injured by distracted drivers in Ontario may soon be looking to an unexpected source for compensation: that driver's boss.
The situation stems from an October law banning drivers from using hand-held communication devices, such as cellphones and BlackBerrys. Newfoundland and Labrador has had such a ban in polace for several years.
While bosses can't be held responsible for the $500 fine a distracted driver can incur just for using such a gadget, they could be held liable in civil suits after crashes their employees get into on company time, experts say.
Lawyers and human-resources organizations have been warning employers about the potential hazard for months.
"We've been sending all kinds of information on this," says Joe Johnson, an information specialist with the Human Resources Professional Association (HRPA), the country's largest HR organization. "Big time."
Experts say employers face two kinds of potential liability: direct and vicarious. If an employer provides a sales rep or other employee with a phone that doesn't have hands-free capability, the employer could be found directly liable, says labour and employment lawyer Brian Smeenk. That employer could be found vicariously liable - a more likely situation - if the employee was merely "on a cellphone for work purposes ... during work time," says Smeenk.
The situation is comparable to a church's liability in the case of a molesting priest or a trucking company whose driver falls asleep at the wheel.
Employers, however, can protect themselves by taking a few simple measures. That includes explicitly telling employees about a company policy that is in line with the new law, combined with training to ensure people are aware of the policy and understand it. "If those two steps are taken it would go a long way to protecting the employer from liability," says Smeenk. "Because they could say, look, we took all reasonable precautions. We're being careful and if our employee disobeyed our explicit instructions, that's not our fault."
Precautions also could go further. Employers should ensure that hands-free phones supplied to workers also include voice dialing, or they risk liability.
They also could go one step further than issuing a policy by telling their employees "there will never be a reprisal against you for being unable to take an e-mail or cellphone call when you're driving," says Smeenk.
Hydro Ottawa is an example of one company that adjusted its safe driving policy for the new law. Brian McGregor, a spokesman for the utility, says all employees "were required to sign an attestation that they were aware of the new law and understood its requirements."
Nevertheless, Johnson estimates only about half of all employers have taken similar precautions.
"A lot of businesses don't have HR people working in them who would be aware of the literature that's been sent out," he says. "Even then, some HR people don't get it."
According to observers, there has not yet been a court case featuring these issues. That is expected to change. "It'll happen," says Johnson. "So far, there's been no case where the employer has been taken to task but I think it will happen. It's such a new law. There's hardly been time for a case yet."
In the U.S., several large judgments have gone against employers whose employees were in cellphone-related automobile accidents.
They include an Arkansas lumber company that paid $16.2 million US, after one of its salesmen hit a 78-year-old woman in Florida, disabling her. The employee was making a sales call while driving.
Ontario was the fourth province to enact such a ban, following Newfoundland and Labrador, Quebec and Nova Scotia. A similar law will take effect July 15 in Manitoba.