Ottawa, December 5, 2007 – Cell phones and driving can be a dangerous mix—and people seem to be combining the two more than ever. This includes working over the phone while behind the wheel. The trend is fed by the increased reliance on using cell phones for business and the view that employees should fill every hour with productive work. Some even text message and correspond by email on their BlackBerry while driving. “The dangers of this are obvious,” says Russel Zinn, senior partner in Ogilvy Renault's Employment and Labour Law practice. “Drivers must take their eyes off the road while dialling or texting—and can become so absorbed in conversation that their ability to concentrate on driving is impaired.”

Some Canadian provinces and U.S. states have instituted (or are considering) laws to ban hand-held cell phone use while driving. However, research suggests this may not be enough. A study published in the British Medical Journal found that drivers talking on a cell phone are four times more likely to be involved in a serious crash than those not using a cell phone. Surprisingly, this was the case whether the driver was using a hand-held or hands-free phone.

In another study, Utah psychologists concluded that using a hands-free cell phone while driving could impair drivers as much as having a blood-alcohol level of 0.08%. This level is the maximum legal limit in Canada.

“Many employers aren’t aware they may be held liable if an employee gets in an accident while driving and using a cell phone on the job,” says Zinn. “There aren’t any Canadian cases on this issue—yet. There have been reports of American cases, though, which should cause all employers to review their policies to limit liability.”

These American cases include:

  • 2004—a U.S. employer agreed to pay a plaintiff $5 million to settle a civil action involving a car crash where its employee was using his cell phone for business while driving
  • 2001—a Miami jury found a lumber company liable for more than $20 million in damages after one of its employees struck another car while making a sales call on his cell phone
  • 2001—the State of Hawaii was ordered to pay $1.5 million in damages after a state teacher who had just completed a call on her cell phone struck a pedestrian while driving to work

These decisions have pushed many employers to institute policies prohibiting employees from using cell phones while driving on company time. Training is also being provided and enforcement mechanisms are being put in place. Policies can range from a complete ban to cautious use.

“No employer would knowingly permit an employee to drive with a blood alcohol level of 0.08%,” says Zinn. “Based on these recent studies, the only safe position for an employer is to not let them drive under the influence of a cell phone, either.”