While most of society has caught on to the dangers of cell phones and texting while driving, these practices are even more dangerous to workers on assembly lines, operating heavy machinery or performing other safety sensitive jobs that don’t involve holding a steering wheel in their hands. Don’t take solace from the fact that your company complies with Occupational Health and Safety (OHS) laws. What you need to protect workers against injury—and your company against liability—is a cell phone use policy that goes beyond the law and provides a real, workable solution.
Defining Our Terms
In this article, I’ll use the term “cell phones” generically to refer to phone calling, tweeting, texting and other similar activity.
The Dangers of Cell Phones at Work
There’s plenty of free information on the internet documenting the dangers of cell phones and driving. But let’s concentrate on the stuff that’s scarcer and harder to find: information about the workplace risks caused by cell phones that aren’t related to driving. Cell phones pose 2 kinds of risks to workers:
Distractions: It’s not just the workers who drive that need to have their wits about them at all times. Cell phones are distracting not only because they require attention to operate but because the conversation itself engages the worker’s mind on something other than the job at hand. For example, in a recent New Brunswick incident, a road construction worker talking on his cell phone was so distracted that he stepped in front of a half-ton truck.
Entanglements: Much like jewellery, which is often banned in industrial workplaces, cell phone devices can get entangled in machinery or interfere with the proper use of personal protective equipment. For example, hands-free earpieces might loosen hearing or head protection; or, a worker may remove his safety gloves to send a text on his cell phone.
What the Law Says
Employers have a duty to safeguard workers from the risks posed by cell phone use at work. The obligation is rooted in 3 sets of laws:
1. OHS Laws Cell phone use isn’t one of the workplace hazards addressed in provincial OHS laws. Exception: Alberta’s OHS Code 2009 restricts the use of cell phones near electric detonators used in blasting operations [Secs. 503(3) and (4)]. However, as we saw when discussing flu protections, every OHS act includes a “general duty” clause requiring employers to take steps to guard against known risks. This may include use of cell phones on the job, especially if you know or should know that such a problem exists at your workplace.
2. Traffic Safety Laws Several provinces, including MB, NL, NS, ON and QC, have or are considering adopting traffic safety laws that ban drivers from talking on handheld cell phones. These rules cover all drivers, including workers driving to or from work or while doing their jobs. Even in jurisdictions that don’t ban cell phone use while driving, drivers who get into accidents as a result of cell phone distractions can be charged with traffic offences such as reckless driving or even criminal negligence if the accident results in death or serious injury.
3. Negligence Law 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 might include allowing workers to do their jobs while talking on cell phones.
How to Write a Cell Phone Use Policy
Although you might not think of it as an HR issue, workers who use cell phones are creating safety and disciplinary challenges that you need to be prepared to confront. As with other forms of inappropriate behaviours, one of the best ways to regulate the problem of cell phones on the job is to write and implement a company policy addressing the issue. But the policy must be sensible and enforceable. A complete ban on cell phone use in the workplace may not meet those criteria. In fact, it may represent one of those cases where the cure is worse than the disease. Some workers may need cell phones to do their jobs; and all workers want to have a cell phone in case family emergencies arise.
Moreover, there are some situations where not letting workers have a cell phone is the safety offence, e.g., in AB, BC, MB, NL, NT, NU, SK and QC, where the OHS laws require employers to provide cell phones or other communication devices to workers who work alone and might need to call in for help during an emergency. So, rather than a complete ban, your policy should establish reasonable restrictions on use of cell phones at work. The policy should be in writing, posted in strategic points across the workplace and distributed to all workers. A written policy is more likely to be obeyed and easier to enforce if it’s not.
Although each policy must be tailored to the circumstances of the particular workplace, you can use the Model Policy below as a starting point. Like the Model Policy, your policy should:
List the policy’s purpose. Workers might feel that using their cell phone on the job is a God-given right. An explanation of the rationale behind the policy can ease resentment and resistance (Policy, Sec. 1).
Cover a broad range of devices. Don’t confine the policy to devices literally called “cell phones.” Cover “communication devices” and define the term broadly to include items such as cell phones, Blackberries, mobile phones, iPhones, text pagers, two-way radios and other wireless devices (Policy, Sec. 2).
Say who’s covered. The policy should apply to all workers, contractors, consultants, temporary workers and other workers, including all personnel affiliated with third parties, who work at your site or facilities. It should also apply to all cell phones—whether owned by the company or the worker (Policy, Sec. 3).
Spell out activities covered: Say the policy applies not just at work but when workers are driving any vehicle on work-related business, again regardless of whether the vehicle is owned by the company or the worker (Policy, Sec. 4).
Spell out prohibited uses. Bar workers from using cell phones in the workplace while they’re working. This ban should apply to any use of cell phones including, but not limited to:
- Holding personal conversations;
- Playing games;
- Surfing the internet;
- Checking email; and
- Sending and receiving text messages (Policy, Sec. 5).
Spell out permitted uses. List the permitted uses of cell phones, including when they may be used and where. For example, it may be reasonable to let workers on breaks use cell phones while they’re not working in designated areas such as break or lunch rooms. Our policy bans both hands-free and handheld devices because studies show that it’s the conversation rather than the operation of the device that causes the distraction. Still, while we don’t recommend it, some employers do permit workers to use cell phones while driving provided they use a hands-free device (Policy, Sec. 6).
Note penalties for violations. Warn workers that if they violate the policy, they’ll be subject to disciplinary measures up to and including dismissal, depending on the circumstances (Policy, Sec. 7).
Workers legitimately rely on their cell phones to maintain communications with their family during work. So the argument could be made that restricting cell phone use at work is discrimination against workers with families. In fact, at least one worker has brought such a case—and lost. The case was filed by a drug company warehouse worker who claimed that his company’s policy of banning workers from carrying cell phones was family status discrimination because it prevented his mother, who didn’t speak English, from contacting him. The federal Human Rights Tribunal disagreed. The company’s policy was developed for safety reasons and didn’t deliberately target or indirectly hurt workers with families [Li v. Novopharm Ltd.,  HRTO 885 (CanLII), June 19, 2009]. The company and worker eventually reached a compromise: the worker was allowed to take his cell phone on the warehouse floor as long as he set it to vibrate and agreed not to return the call until leaving the floor.