We all know about the dangers of using a cell phone while driving. But if you think driving a car while talking on a cell phone is dangerous, imagine the hazards of operating a forklift, working on an assembly line or performing other safety-sensitive jobs while chatting away on a cell phone. In fact, many workplace incidents occur because workers weren’t concentrating on the task at hand.
Cell phones aren’t the only source of distractions but they’ve made the problem much worse. So if you’re a safety coordinator, you need to restrict the use of cell phones by workers at all times and in all situations—not just while they’re behind the wheel of a vehicle. OHS and other laws are just beginning to grapple with the cell phone problem. We’ll tell you what—if anything—these newly emerging laws say about cell phone use in the workplace. And we’ll show you how to create a cell phone use policy for your workplace that’s legally sound and enforceable.
ONLINE RESOURCE:
Click here to find a Model Cell Phone Use Policy that you can download, adapt and use at your company.
HAZARDS OF CELL PHONE USE AT WORK
Much has been written about the dangers of using cell phones while driving. So we won’t rehash those dangers in detail. The use of cell phones in an office setting may distract workers from their jobs and annoy co-workers but it’s probably not dangerous. However, the use of cell phones in other types of workplaces, particularly in industrial facilities, creates some serious safety hazards. That’s because workers in these environments need to have their wits about them at all times. In industrial workplaces, cell phone use can create two kinds of safety hazards:
WHAT THE LAW SAYS
When it comes to regulation of the use of cell phones at work, there are three types of law to consider:
1. OHS Laws
With one narrow exception, the OHS laws don’t identify the use of cell phones by workers as a workplace hazard. Exception: Alberta’s OHS Code 2009 restricts the use of cell phones near electric detonators used in blasting operations [Secs. 503(3) and (4)]. Thus, employers aren’t specifically required to adopt a ban on worker cell phone use as part of their OHS program. However, every jurisdiction’s OHS act includes a “general duty” clause requiring employers to take steps to ensure the health and safety of workers. Eliminating and controlling foreseeable hazards is a key part of this general duty. So if you know or should know that workers are using cell phones while driving or performing other safety-sensitive tasks, you must take steps to address the problem—even if such use hasn’t yet resulted in a safety incident or injury.
Insider Says:
To the extent that the OHS laws mention cell phones at all, it’s usually in the context of requiring them for workers who work alone. For example, some jurisdictions, such as AB, BC, MB, NT, NU, SK and QC, specifically require employers to provide an effective communication system, such as a cell phone, to workers who work alone so they can touch base with supervisors and call for help.
2. Traffic Safety Laws
To date, five Canadian jurisdictions—MB, NL, NS, ON and QC—have traffic laws that make it illegal to use a handheld cell phone while driving. (The federal and Alberta governments considered similar bans but rejected them.) Thus, workers in these jurisdictions who use cell phones while driving company cars or driving personal vehicles on work-related business are violating these laws. Even in jurisdictions that don’t ban cell phone use while driving, workers who do so could still face traffic violations. A driver who runs a stop light or causes an accident because he was using a cell phone could be charged with traffic offences such as reckless driving or even criminal negligence if the accident results in a death or serious injury.
ONLINE RESOURCE:
Click here for links to studies that show a connection between traffic accidents and cell phone use.
3. Negligence Law
Remember: All legal obligations don’t come from statutes and regulations. Individuals and organizations also have safety duties under what’s called “common law”—that is, law made up by judges in individual cases that serve as a precedent for future cases. Negligence is an example of safety-related common law. A company may face liability for negligence when it fails to take reasonable steps to protect individuals from foreseeable risks and somebody gets hurt as a result. Failing to take reasonable steps is a broad concept that can cover just about anything—from leaving a banana peel on a train platform to letting workers do their jobs in a way that endangers the public.
Conversely, showing that your company took reasonable steps to prevent a hazard or incident can help it defeat not only a negligence lawsuit but also an OHS charge (via the due diligence defence.) Liability for negligence is a serious risk for companies. And letting workers talk on cell phones while they work or drive is likely to be considered an act of negligence. For example, suppose one of your workers sends a text message to his supervisor asking for drop-off instructions while making a delivery in a company truck. The worker gets so distracted that he drives through a red light and hits an oncoming vehicle. The other driver could sue the worker—and your company—for negligently causing her injuries—and would probably win. The argument: A reasonable person would have recognized that letting workers use cell phones when they drive on company business creates a risk of traffic accidents and injuries. Thus, the company’s failure to ban such cell phone use was negligent.
HOW TO WRITE A CELL PHONE USE POLICY
As a safety coordinator, you need to recognize the dangers posed by the use of cell phones and take reasonable steps to control them. One way is to write and implement a policy that deals specifically with this issue. But a complete ban on the use of cell phones in the workplace may be unnecessary and unrealistic. After all, there are some legitimate benefits from workers having cell phones, such as to receive emergency calls from their family. And as noted above, the OHS laws may require workers who work alone to have and use cell phones for their protection. Plus, nearly everyone has a cell phone these days. So getting workers to leave their phones at home or never use them at work is probably a losing battle. Thus, rather than trying to totally ban all cell phones from the workplace, establish reasonable and realistic guidelines governing their use. Your company’s cell phone use policy should be in writing. Why? Having a written cell phone use policy can help your company prove due diligence if it’s ever accused of an OHS violation after a worker was hurt or killed because he or a co-worker was using a cell phone in the workplace.
Example: You have a written policy restricting the use of cell phones that you’ve posted and given to all workers. A worker violates your policy and uses a cell phone while he’s operating a backhoe. The worker is distracted and runs over a co-worker. If the company is accused of failing to take reasonable steps to protect the worker, having a written policy shows that it recognized the hazard posed by the use of cell phones in the workplace, took steps to protect workers from that danger and educated workers about this hazard. A written policy is also easier to enforce than one that’s understood but not actually written down. It sets the boundaries of acceptable conduct and cell phone use and puts your workers on notice of your expectations. Workers will then know what they can—and can’t—do and what the ramifications will be if they violate the policy. Then, if a worker sends a text message on his cell phone while, say, working on a roof, you’ll have laid the legal groundwork to discipline him for the infraction.
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