Friday, April 28, 2017 is Canada’s National Day of Mourning for persons killed at work. The event is commemorated across the country through civic and private events.

The frequency of workplace death is surprisingly steady in Canada – on average, about 900 people a year die due to their employments, according to the Association of Workers’ Compensation Boards of Canada (“AWCBC”). Those numbers have not significantly changed in over a decade.

That is a surprise because jurisdictions across the country have been increasingly aggressive in policing occupational health and safety (“OHS”) standards. Enforcement occurs on a daily level through administrative orders and “tickets” issued on worksites by provincial government inspectors, and frequently in courtrooms as companies and individuals are charged with quasi-criminal offences.

Those prosecutions, mainly under provincial OHS laws but sometimes under the Criminal Code, have serious consequences for those charged. First, they are time consuming and costly. Second, they can impose serious reputational damage. Third, if convicted larger companies have seen fines over one million dollars (for a multiple fatality case) and smaller companies often are stunned by penalties exceeding $50,000 for cases where no one was hurt at all.

The fact that serious accidents and fatalities still happen is a reflection of how difficult it is for even the most conscientious employers to convince people to work cautiously. Accident rates also may reflect new types of risk which didn’t exist ten or even five years ago.

One of those risks is “distracted driving”, the term given to operating a motor vehicle while also operating an electronic device (cellphones, usually). The RCMP defines distracted driving like this:

Distracted driving is a form of impaired driving as a driver's judgment is compromised when they are not fully focused on the road. Distracted driving qualifies as talking on a cell phone, texting, reading (e.g. books, maps, and newspapers), using a GPS, watching videos or movies, eating/drinking, smoking, personal grooming, adjusting the radio/CD and playing extremely loud music. Even talking to passengers and driving while fatigued (mentally and/or physically) can be forms of distracted driving.

Distracted driving is so common now that it may soon surpass impaired driving as the cause of traffic accidents. The U.S. Insurance Institute for Highway Safety has published information on the topic suggesting that “observation surveys indicate the rate of drivers texting at any moment during the day is rising, especially among younger drivers. In 2015, 2.2 percent of all drivers and 4.9 percent of drivers estimated to be 16-24 years old were observed texting or otherwise manipulating hand-held devices.”

According to the Insurance Bureau of Canada, distracted driving is increasingly common and in the IBC’s view, “the new DUI”. The IBC says to motorists:

  1. You are 23 times more likely to be involved in a collision if you text while driving and 4 times more likely if you talk on a cellphone (hand-held or hands-free) while driving.
  2. You may be breaking the law. All provinces in Canada, plus the Yukon and Northwest Territories now have bans in place on using cellphones or hand-held electronic devices while driving. Depending on the legislation, penalties can include hefty fines and, in many cases, demerit points.
  3. A distracted driver may fail to see up to 50% of the available information in the driving environment. You may look but not actually “see” what is happening.
  4. A study showed that nearly 80% of collisions and 65% of near-collisions involved some form of driver inattention up to three seconds prior to the event.

According to the Canadian Automobile Association, “Driver distraction is a factor in about 4 million motor vehicle crashes in North America each year. CAA believes that the rise of habits that constitute distracted driving, in particular texting while driving, is a serious concern. We need the same sort of push on texting and driving that made drinking and driving unacceptable two generations ago.”

Operating a motor vehicle for work is more than driving a truck, cab or ambulance. Anyone driving from home to a location different from their usual workplace, or travelling for work, is usually “in the course of employment” under workers’ compensation law. Thus distracted driving is very much an employer responsibility and risk.

Distracted driving by employees is a serious vicarious liability risk for employers – for example the Dyke Industries case (a salesman distracted by his phone killed a pedestrian, settled for $16 million U.S.) That case involved injury to third parties, but a growing concern is injury to the distracted employees themselves.

Safety regulators are recognizing the problem and beginning active public education and enforcement. The United States Occupational Safety and Health Administration (“OSHA”) has launched an initiative to reduce the problem. One difficulty in tracking the rate of work-related distracted driving is that where accidents occur with cars, very often they will be covered by auto insurance – masking the true character of the case. That may avert cost for an employer in the specific instance but it doesn’t alter the fact that people are in the course of employment.

One of the unexpected aspects of the distracted driving epidemic, is that it imposes serious life-and-death risks onto workers and employers who hitherto thought they were perfectly safe. Traditionally workers most at-risk faced dangers in the workplace (factories, warehouses, construction sites all have innate hazards). Now, people who aren’t accustomed to thinking of themselves as “workers” – professionals, sales people, virtually anyone who may at times drive for work purposes – face a serious threat to their health and safety: themselves and their phones.

Those uninitiated in OHS law might react to that by thinking “if someone takes the risk, how can an employer be responsible?” Anyone who knows workplace safety regulation is aware that an employer is responsible for virtually everything that happens to people, while they work or travel for work. The concept of “no fault” workers’ compensation insurance is that no matter how negligently a worker may have behaved, she will not lose entitlement to coverage.

Similarly, Canadian courts have consistently interpreted OHS law to treat employers as “virtually insurers” of safety. Thus, when something bad happens, an employer will always be scrutinized and often be blamed. Even where a rule is in place and people have been trained in safe practice, a breach of that practice will trigger an examination of whether the employer adequately enforced the rule.

Employers in Canadian jurisdictions are expected to practice “due diligence” when it comes to any possible risk to the safety of employees. These are measures employers can take to reduce the risks arising from distracted driving:

  1. First, discourage the use of the phone while driving – avoid prompting distracted driving, by not calling, texting or emailing someone when she is known to be operating a vehicle;
  2. Second, adopt a policy requiring employees to use only hands-free devices for phone calls while driving, and not to engage in texting or email while driving;
  3. Communicate that policy frequently, in person and in writing (emails);
  4. Reinforce that policy through reminder training, such as the very dramatic and effective video public service announcements now ubiquitous on the web;
  5. Have the Joint Health and Safety Committee or worker safety representative include distracted driving on the list of issues which it inspects for and reports upon;
  6. Examine employee call, text and email traffic to assess whether they appear to be engaging in those activities while operating a vehicle;
  7. Warn and sanction employees known to be in violation of the rule. Note that a “sanction” should not include suspension, unless an employment contract or collective agreement permits it.

Polices and enforcement work to empower an employer to act when an employee breaks the rules. In BFI Canada Inc. v General Teamsters Union, Local 362, 2015 CanLII 15350 (AB GAA) a truck driver with BFI was dismissed for violating the company’s distracted driving policy after an on-board camera showed him holding and using his cell phone while driving at a truck stop. The union grieved the termination. The arbitrator found that the incident constituted a clear case of unsafe driving, a far from trivial transgression for a professional driver who was rightly held to a high standard. Furthermore, the driver had been disciplined four times before and did not appear to learn from these incidents. As such, BFI had just cause to terminate the Grievor’s employment.

In addition to the Grievor’s misconduct, the arbitrator considered the following factors in coming to its decision to uphold the termination:

  • BFI had in place a reasonable cell phone use and distracted driving policy as part of its safety program. The policy was brought to the Grievor’s attention and he was trained on it;
  • BFI’s safety training identifies cell phone use while driving as a safety hazard that substantially increases the risk of injury;
  • The policy warns of discipline for violations, up to and including termination and it was consistently enforced between employees.

Again, results like that hinge on an employer’s faithful devotion to due diligence. The purpose of due diligence is (1) to actually protect people from potential risks and (2) to prove that you tried to protect them. They work with most other forms of work-related risk and can work again, with distracted driving. More to the point, where these measures are not taken, they definitely do not work. In such cases, an employer will have little excuse and little defense.

Many employers are willing to adopt a policy – that’s the easy part. But ongoing training and enforcement take time and energy some won’t invest. Unfortunately, that just doesn’t work: you can buy sheet music, but if you don’t practice you’ll never be able to play the piano.