Managing Workers' Comp: "Intexicated" Drivers and Employer Liability

The electronic devices we increasingly rely on to get us through our days are impacting job safety, a not-so-good vibration being felt, literally, from coast to coast.

The proliferation of personal technology, predominantly cell phones, Blackberrys and iPods, now infiltrates work life as well as leisure time.

A Boston trolley driver is distracted while sending a text message and slams into another car, injuring scores of passengers. Even more horrific is the operator of a commuter train in Los Angeles who, while looking down to send a text message, hits another train and causes the deaths of 20 people.

Research by the Virginia Tech Transportation Institute revealed that a truck driver looking down while texting for a mere 6 seconds while motoring at 55 miles per hour will travel the entire length of a football field, and not realize he traveled so far, so fast. No longer is it only intoxicated drivers who are dangerous, it is the “intexticated” drivers, as well.

The Harvard Center of Risk Analysis estimates that cell phone activity contributes to 636,000 motor vehicle crashes, 330,000 injuries and 2,600 fatalities each year. Although it's hard to put a number on how many of those are “work-related” — such as those caused by distracted truck drivers, delivery drivers or salespeople on their way to the next meeting — it is safe to say employers need to be aware of potential ramifications.

BANNING CELL PHONE USE

Some businesses already have noted the number of injuries and rising costs associated with workplace distractions by adopting policies on banning cell phones. These employers understand the potential liability connected with this behavior. All you have to do is look back a few years to a company that had to settle a case for $16 million because one of its salespeople killed an elderly person when driving while talking on a cell phone.

Unfortunately, there are still employers who fail to realize the urgency of the matter, because many believe that a salesperson on the road or the local delivery person can't do his or her job fast enough unless they are multi-tasking.

But it's time for these employers to wake up and smell the risk. Most assuredly, the insurance company and their underwriters are standing downwind and it's only a matter of time before they start sniffing around to see if employers have language in place prohibiting the use of cell phones while driving.

Several politicians and the American Transportation Association already have introduced legislation aimed at banning texting while operating a vehicle. The proposed “Avoiding Life-Endangering and Reckless Texting by Drivers Act of 2009” bill will penalize states in violation of the law with the risk of losing 25 percent of their annual federal highway funding.

OTHER ISSUES

It's not just the inappropriate use of cell phones that is causing undo risk. It also is injuries to workers listening to iPods while on the job. Injuries and worse occur when an employee is listening to ABBA instead of a listening to a co-worker yelling out a warning or hearing the beep-beep-beep of a forklift backing up.

One aerospace manufacturer took a proactive approach by recently banning 1,500 of its employees from using iPods at work, stating, “Even though there have been no incidents, there are aircraft, forklifts, trucks and so on moving around. We feel people should always be concentrating fully.”

The human resources department of a company needs to know the ramifications of the new technology in the workplace so it can put specific policy language into the employee handbook, properly train employees and vigorously enforce those policies. By doing so, employers can protect themselves from a liability standpoint by showing that the employee knowingly violated a written safety rule.

Employers need to realize that they are putting themselves at risk should a distracted employee be involved in an accident. Plus, to add insult to the injury, it is very likely that there will be a workers' compensation claim.

AGREE TO ELIMINATE UNSAFE ACTS

Unsafe acts cause more workplace accidents than unsafe conditions. Employers and employees need to work together to ensure that an electronic device policy is enforced in a way that shows each understands the importance of keeping the public and co-workers safe by being able to respond instantaneously to a workplace issue, whether it is a pedestrian crossing a street or a truck backing up to a loading dock.

It is true that you can't idiot-proof the world. But by putting the proper policy into place, you can protect your little piece of the world (such as your workplace) and the public as a whole.

Nothing drives home this point better than the story of a 25-year-old truck driver from upstate New York who was talking on a cell phone with one hand and texting with the other. As you would expect, he came up one hand short and lost control of his vehicle, smashed into another car, careened across a front lawn and plunged his truck into a swimming pool, injuring a 68 year-old woman and her 8 year-old niece.

We only can hope that the company he worked for had the foresight to have an up-to-date policy on the do's and don'ts of the new technology in the workplace. Recent cases have shown language is not enough. Employers also must show they have enforced the policy and properly educated the employee.


Teresa A. Long is director of agency services for the Institute of WorkComp Professionals in Asheville, N.C., the largest network of workers' compensation professionals in the nation. Teresa was claims manager for 14 years for Walt Disney World and later was vice president of risk management for Sarasota, Fla.-based Unisource Administrators Inc. She can be contacted at [email protected].

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