It should be a no-brainer:

• Traffic accidents are the leading cause of workplace deaths;
• Talking on cell phones is a distraction;
• Employees who talk on cell phones when they drive are more likely to get into serious traffic accidents than employees who concentrate on their driving.

The logical conclusion: Companies that are serious about preventing traffic accidents should ban employees from using cell phones when they drive - at least when they drive on company business.

Welcome to the Real World

Of course, things aren't that simple. In the real world, many safety directors have a hard time persuading companies to adopt a ban on cell phone use, despite the growing body of scientific evidence demonstrating the link between cell phones and traffic accidents (there's a list of leading studies after this article). Management may want employees to use cell phones when they drive to promote "multi-tasking" and enhance productivity. Adding insult to injury, employees and unions are apt to regard a ban on cell phones not as a workplace safety measure but as an infringement on personal freedom.

This article will lay out a strategy safety directors can use to advocate more effectively for a company-wide ban on cell phones. The strategy: Don't simply argue that cell phone use is dangerous; stress the liability risks it poses to your company. Here's how to do that.

Cell Phones, Driving & the Law

Playing the liability card is a venerable tradition, as old as the safety profession itself. To get management backing, point out that the safety measure for which you're advocating is required by law.

You can use the same strategy to win support for a cell phone ban. But there are a few twists you need to be aware of:

• Neither OSHA nor Canadian provincial OHS laws recognize cell phones as an occupational risk and thus don't directly address it;
• There is no other national regulation governing cell phones and driving in the US or Canada;
• Only a handful of states - CT, NJ, NY and Washington, DC - have banned cell phones and driving (although five states - IL, MA, NM, OH and PA - give local government authority to ban it within their boundaries); and
• In Canada, only Newfoundland has adopted a ban on cell phones and driving - although a number of other provinces, including Ontario, are considering similar measures.

The Basis of Liability

Given the apparent absence of laws on cell phones, how in the world is a safety director supposed to make a case for a company-wide ban on cell phones and driving?

Answer: There are in fact laws you can cite to show that failing to control the use of cell phones by employees who drive exposes your company to liability. But these laws aren't easy to find, especially if you're not a lawyer. That's because the liability is rooted not in a written statute or regulation but within the law of tort.

Tort is one of those technical terms that everybody has heard but few outside the legal profession fully understand. Tort is a form of common law, that is, law made by judges, rather than by legislators and regulators. The law gets made one decision at a time on the basis of facts. Each case then serves as precedent establishing standards and rules for the cases to follow. Of course, since no two cases are ever exactly the same, judges have to extrapolate the old rules to the new facts of the case they're being asked to decide. Thus, the more cases that get ruled on, the more the law grows.

Tort law can be relatively difficult for safety directors and laypersons to deal with. Why? Because finding the law isn't as simple as reading a statute or regulation. You must look up the court cases.

Conclusion

The Bottom Line: To get to the bottom of the law of cell phone liability, you need to look at tort law and court cases. This is what we'll do next in Part 2 of this series.

FACT OF THE WEEK:

Cell Phones & Accidents

Motorists who use cell phones when they drive are up to four times more likely to get into accidents than motorists who concentrate exclusively on their driving.

Source: New England Journal of Medicine

STUDIES ON CELL PHONES & DRIVING

Lesch, "Driving Performance During Concurrent Cell Phone Use," Accident Analysis & Prevention, Vol. 36, No. 3, May '04.

Thulin & Gustafsson, "Mobile Phone Use & Driving: Conclusions from 4 Investigations," Swedish National Road & Transp. Inst., 2004.

Strayer, Drews & Crouch: "Fatal Distraction: A Comparison Between Cell Phone Drivers and Drunk Drivers," Proceedings of the 2nd International Driving Symposium on Human Factors in Driving Assessment, July 21-24, 2003, Park City, UT. http://www.psych.utah.edu/AppliedCognitionLab/DrivingAssessment2003.pdf

Consiglio, Driscoll & Witte, "Effect of Cell Phone Conversation & Other Potential Interference on Reaction Time in Braking Response," Accident Analysis & Prevention, Vol. 35, No. 4, July 2003.

Wilson, Fang & Wiggins, "Collision & Violation Involvement of Drivers who Use Cell Phones," Traffic Injury Prevention, Vol. 4, No. 1, March 2003.

"The Risk of Using a Mobile Phone While Driving," Royal Society for the Prevention of Accidents (Birmingham, UK), 2002. http://www.rospa.org.uk/pdfs/road/mobiles/report.pdf

Lissy, Cohen & Park, "Cell Phone Use While Driving: Risks & Benefits," Harvard Center for Risk Analysis, 2000.

Hahn & Tetlock, "The Economics of Regulating Cell Phone Use in Vehicles," AEI-Brookings Joint Center for Regulatory Studies, Oct. 1999. http://www.aei.brookings.org/publications/working/working_99_09.pdf

Redelmaier & Tibshirani, "Association Between Cellular Telephone Calls & Motor Vehicle Collisions," New England Journal of Medicine, Vol. 336, No. 7, Feb. 13, 1997.

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