By Leanne E. Standryk
In an economy that promotes efficiency and productivity, employers and employees alike are looking for ways to effectively capture their time and increase business. An increasing number of employees are provided with Blackberries and cell phones that allow them to conduct work 24/7 and conduct “work on the road” – creating offices on wheels.
Most of you will know that effective October 26, 2009 the Government of Ontario introduced a ban on the use of mobile devices while driving. A violation of the new law carries with it fines of up to $500.00 together with the potential of licence suspensions, loss of demerit points and potential imprisonment. While the law became effective October 26, 2009, the Government has announced a 3 month grace period to focus on educating drivers about the ban. Enforcement will begin February 1, 2010.
While the legislation does not include a provision to create Employer liability for offences committed by their employees while engaged in work-related activity, an Employer could be exposed to civil liability and be held vicariously liable for damages resulting from an accident incurred by an employee while performing a work related activity.
The issue of civil liability has not as yet been reviewed by the Canadian Courts. This said, the issue has been decided in several decisions from the United States. While the decisions are not binding on our Canadian Courts, they offer some insight into potential treatment of these issues here in Canada. For example, an Arkansas-based company lost a $21-million lawsuit for personal injuries sustained by the plaintiff in a car accident caused by an employee who was using a cell phone for a sales call at the exact moment of the accident. These cases should prompt employers to consider the following:
1. The Occupational Health and Safety Act requires employers to take every reasonable precaution to protect the health and safety of their workers. This potentially extends a duty on employers to ensure that there are appropriate workplace polices in place regarding use of mobile devices, texting, talking or viewing a computer screen in their rolling offices while driving.
2. Develop and Implement a Cell Phone/PDA Use Policy. Employers should take immediate steps to develop and implement a policy that sets out the parameters for acceptable use of devices that is consistent with Ontario’s new legal standards. At a minimum, the policy should prohibit the use of hand-held devices while driving at all times unless the device is used in “hands-free” mode or the vehicle is off the road and not in motion at the time of the call.
3. Education. Employers should develop a communications and mandatory training strategy to ensure employees are fully aware of company policy governing cell phone use and their new obligations under the Highway Traffic Act. Require employees to sign a form acknowledging that they have received a copy of the policy, understand the policy and consequences of any breach and maintain the form in each employee’s file.
4. Review Job Duties and Responsibilities. Consider whether any employees are operationally required or expected to be responsive to calls and e-mails while in transit. Clear guidance should be provided to these individuals that a failure to respond to e-mails while in transit shall not be subject to discipline or reprisal.
5. Consistently Enforce Disciplinary Measures. Employers should consistently enforce policies governing cell phone use by following disciplinary measures commensurate with the severity of the infraction.
6. Provide Hands-Free Devices. Where appropriate and feasible, employers may consider issuing hands-free devices to employees, particularly those employees who are required to use cell phones and other devices frequently throughout the workday.
By taking pro-active steps prior to February 1, 2010, employers may reduce their potential liability, help promote a culture of worker safety and ensure compliance with the law. The foregoing is provided to you for information purposes only. We caution you to obtain legal advice specific to your situation in all circumstances.
Leanne Standryk is a senior partner at Lancaster Brooks & Welch LLP and may be reached at 905-641-1551