Drowsy driving is on the rise. More than 60% of respondents in a pair of recent surveys admitted that they had taken to the roads when they were too tired to drive safely at least once in the past year. Chances are that some of your own workers are driving drowsy when they complete their shifts. Today’s workers are working longer hours. And even those putting in “normal” eight-hour shifts might be overly tired at the end of the workday because of the nature of their work or for personal reasons, such as the use of medications that cause drowsiness. Fatigue, regardless of its cause, impairs attentiveness, reaction time, vision, reflexes and judgment. So when your workers drive home after an exhausting shift, they become a danger to the public and to themselves. How does any of this affect you? First and foremost, you don’t want your workers getting into traffic accidents. But what you might not realize is that impaired driving by fatigued workers also exposes your company to the risk of liability, even for traffic accidents that happen when workers are driving home after a shift. How in the world can an employer be responsible for traffic accidents caused by fatigued workers who are off-duty? This article will answer that question. More importantly, it will tell you what you can do to protect your workers and minimize your risks of liability. Click here to find a Notice on recognizing the warning signs of fatigue that you can adapt and give to your workers.
WHAT THE LAW REQUIRES
Employers have a legal obligation to take reasonable steps to keep tired workers off the road after they leave work. Where does this obligation come from? It doesn’t come from any statutes or regulations—OHS or otherwise. Remember: not all of an employer’s safety-related duties come from a statute or regulation; some come from what’s known as “common law”—that is, law made by courts one lawsuit at a time. Negligence is an example of court-made law. Under the law of negligence, somebody who suffers injuries because another person didn’t use reasonable care can sue for damages. Workers’ compensation laws normally bar injured workers from suing their employers for negligence. But such laws typically exclude incidents involving the use of a motor vehicle. In addition, employers can be sued by third parties injured as a result of the employer’s negligence. Consequently, if a fatigued worker causes a traffic accident, the worker and/or another person injured in the accident could sue the worker’s employer for negligence. And the employer could be found liable for the accident if:
- It had a duty to use reasonable care to protect the victim;
- It violated that duty; and
- The violation caused the accident.
Employers aren’t usually responsible for what workers do when they’re off duty. But the usual rule goes out the window if the employer:
- Knew or should have known that an off-duty worker posed an “unreasonable risk” of danger to others; and
- Could have taken steps to control the risk but didn’t do so.
So workers and other victims of a traffic accident could win a negligence lawsuit against an employer if they can prove that the employer knew that the worker was fatigued, that his fatigue would impair his driving and create an unreasonable risk to the worker and the public, and that the employer could and should have done something to prevent the worker from driving.
So far, we’ve been talking about a theory. Has that theory ever been tested? The Insider found only one case from Canada in which an employer was sued over a traffic accident caused by a fatigued worker. The case involved an Alberta worker who had worked 19 hours at a livestock auction. After his shift, he rode with a friend to the friend’s house, drinking some beer on the way. His friends recognized that the worker was in no shape to drive and tried to get him to stay at their house, but he refused. The worker was driving his truck home when he dozed off and veered into a ditch. He was thrown out of the rear window when he tried to move the truck back onto the road. The accident left him paralyzed and in a wheelchair. The worker sued his employer for negligence, arguing that it had violated the AB Employment Standards Code, which limits workers to 12 consecutive hours of work a day. The court dismissed the lawsuit. But, significantly, it found that the worker had a valid theory. The court noted that in some situations, overworking a worker “may lead directly to safety concerns where fatigue and risk are obvious and go hand in hand.” For example, an airline might be liable for negligence if an overworked pilot causes a plane crash. In this case, the employer had, in fact, violated the Code by letting the worker work for 19 hours straight. But the worker couldn’t prove that this violation amounted to negligence. It wasn’t the first time the worker had worked over 12 hours straight, the court noted. And there was no evidence that working too long was the immediate cause of the accident. After all, the worker didn’t get into the accident while driving home right after work. First, he spent time with friends, consumed alcohol and refused their offer of a place to stay. All of these events broke the “chain of causation” between the employer’s Code violation and the accident, the court concluded [Gartner v. 520631 Alberta Ltd.]. Bottom line: The court’s decision makes it clear that a Canadian employer could be held liable for a traffic accident caused by an off-duty, fatigued worker under the right circumstances. Although the Alberta employer got off, the next employer that’s similarly accused may not be so lucky.
Another indication that a Canadian employer could be held liable in negligence for an accident caused by a fatigued worker is that such rulings have happened in U.S. court cases. There are at least two examples: Example #1: After working 12 gruelling hours at an oil drilling site, a Texas worker was driving home when his vehicle crossed the median and hit another vehicle head on. Five people died, including the worker. The oil company settled the case with the families of the victims in the other car. But the worker’s widow pressed on with her lawsuit, arguing that the accident was the result of the worker’s fatigue. A Texas court agreed and held the company liable for negligently causing the worker’s death. The oil company knew the driver was exhausted and that letting him drive posed an unreasonable risk to others, the court explained. It also could have but didn’t take steps to control the risk, such as training workers in the dangers of driving drowsy [Escoto v. Estate of Ambriz]. Example #2: In Oregon, an 18-year-old fast food worker worked three shifts in less than 24 hours, for a total of over 12 hours. He told his manager he was tired and asked to be excused from his next shift. The manager agreed. While driving home, the worker fell asleep at the wheel, crossed into oncoming traffic and hit a van. The worker died and the van’s driver was seriously injured. The van’s driver sued the fast food restaurant, arguing that it was negligent for having the worker work too many hours and letting him drive home when it should have known he couldn’t do so safely. A jury—and Oregon appeals court—agreed and awarded the van’s driver damages [Faverty v. McDonald’s Restaurants of Oregon, Inc.]. Canadian negligence law is similar to U.S. negligence law. And drowsy driving is as big a problem in Canada as in the U.S. So, in all likelihood, it’s just a matter of time before we see similar cases come out of Canadian courts.
The Analogy to Employer Liability for Drunk Driving
There’s yet another reason to believe that a Canadian employer may soon find itself on the losing end of a fatigued driving lawsuit: Courts in Canada have already held employers responsible for traffic accidents caused by workers driving home drunk after their shift. Although the cause of impairment in these cases was alcohol, not fatigue, the same negligence principles applied. Courts ruled that employers were aware of the danger posed by workers driving home after drinking at work or work-sponsored events, such as a holiday party. In each case, the employer could have but failed to take reasonable steps to control this danger. Courts likened the employers to bartenders and other “hosts” in terms of their responsibility for the drunken driving of their guests. Example: A supervisor in BC brought a cooler of beer to a crew erecting a trade show display on a hot day. A worker went home visibly drunk and drove into a ditch. The accident left him a quadriplegic. The court found the employer partially liable for the worker’s accident and ordered it to pay him $2.7 million in damages. It noted that the employer—through the supervisor—had supplied the beer. And the supervisor knew the worker was drunk but didn’t try to stop him from driving home. This failure violated the employer’s duty to protect the worker from unreasonable risks, the court concluded [Jacobsen v. Nike Canada Ltd.]. It’s not a big leap to suggest that courts in Canada will eventually apply the same analysis to cases involving accidents caused by tired workers. In fact, the court in the Faverty case mentioned above made that very comparison. It noted that employers that overwork visibly tired workers are like bartenders who serve visibly drunk customers. Letting these individuals drive home is an act of negligence, the court implied. To take the comparison a step further, it’s fair to say that employers that let obviously exhausted workers drive home are like bartenders who let obviously drunk customers drive home.
MANAGING FATIGUE IN THE WORKPLACE
What can you do to manage your risk of liability for workers’ fatigued driving? The simple answer is not to let them get fatigued. Of course, that’s completely unrealistic. Workers are going to get tired, either because of their jobs or for reasons beyond your control— like the fact that they have a newborn baby at home keeping them awake all hours of the night. So the solution should focus not on eliminating but managing fatigue so that it doesn’t create a safety issue. Here are some of the things you can do: Implement safe work practices. Work is tiring. But employers can implement work practices to minimize the physical and mental toll it takes on the workers who perform it:
- Limit the number of hours or shifts workers can work, even if you’re not required by law to do so (Some provinces and territories limit the number of hours workers can work in a day and/or week. For more information, see ‘Employment Standards Law Violations & Negligence’ at the end of this article);
- Make sure workers take regular breaks;
- Consider letting workers take short naps in designated areas;
- Provide healthy snacks, such as fruit and yogurt (Foods that are high in sugar create a “sugar rush” and burst of energy, but ultimately leave workers feeling even more tired); and
- Provide coffee, tea and other caffeinated beverages (but not on grueling hot days when the consumption of such drinks may increase the risk of heat stress).
Keep fatigued workers off the road. If workers get fatigued despite your efforts, have options in place to help them get home without having to drive. For example, have a co-worker drive the tired worker home. If that’s not possible, require supervisors to have the worker’s spouse or other relative or friend pick the worker up. If groups of workers live near each other, you might want to start a van or bus service to take them to and from work. And, in some circumstances, you might want to provide car service home for tired workers. (Yes, providing van or car service is an added expense, but it will pay off down the road in reduced traffic accidents.)
Monitor workers for fatigue. Train supervisors on how to recognize the warning signs of fatigue and require them to be on the lookout for such signs. Simply monitoring isn’t enough. For example, the oil company in the Escoto case discussed above required supervisors to monitor workers for signs of fatigue. But it was unclear who the monitors were and what, if anything, they could do to intervene with exhausted workers. So tell supervisors that if they notice that a worker is becoming exhausted, they should take steps to intervene, such as making sure the worker takes a break or drinks coffee. If the worker is already exhausted, supervisors should ensure that he doesn’t drive home. Warn workers of the dangers of fatigue and driving while tired. Train workers on the dangers of fatigue and driving drowsy. Failure to take this step is one of the reasons the oil company was found liable in Escoto. Give workers a notice warning them of the dangers of fatigue and driving while they’re fatigued. Also, post the notice in the workplace. If workers know what to look for, they may be more likely to, say, call a relative to pick them up, hitch a ride with a co-worker or take car service home. Your notice, like our Notice, should include the following information:
- A brief explanation of the dangers of driving while tired;
- A list of the warning signs of fatigue that workers should look for;
- Steps workers should take if they notice any of the warning signs during their shift; and
- Steps workers should take if they notice any of the warning signs at the end of their shift.
Safety coordinators need to understand that a company’s responsibilities for health and safety don’t necessarily end once workers leave the workplace. Today’s companies may owe a duty to protect workers even after they punch out and go off-duty. They also may owe a duty to protect members of the public against dangers posed by their personnel. Fatigued driving is a perfect illustration of the changing face of liability for workplace safety. People are being killed and maimed on the roads as a result of fatigued driving. Some of the responsibility for this sad state of affairs resides with employers who allow their workers to drive home knowing that they’re exhausted and shouldn’t be behind the wheel. The traditional OHS laws and regulations don’t address this problem. But the courts are finding ways to apply traditional negligence laws to make employers answer to their victims. Consequently, employers are well advised to recognize the hazard posed by fatigued driving and take steps to control it – both to help their workers and members of the public avoid getting into tragic accidents and to minimize the risks of liability.
SHOW YOUR LAWYER
Faverty v. McDonald’s Restaurants of Oregon, Inc., 892 P.2d 703 (1995) Gartner v. 520631 Alberta Ltd.,  A.J. No. 194, Feb. 22, 2005 Jacobsen v. Nike Canada Ltd.,  B.C.J. No. 363, Feb. 22, 1996 Escoto v. Estate of Ambriz, 200 S.W.3d 716 (Ct. App. Texas, 13th Dist., 2006)
Employment Standards Law Violations & Negligence
Overworking your workers could make a company liable for negligence if fatigue causes the worker to get into a traffic accident while driving home after his shift. Naturally, you expect and have every right to insist that your workers work hard. But there’s a fine line between hard work and overwork. Where exactly is that line? One place to look for guidance is the employment standards laws. In some provinces and territories, these laws set limits on the number of hours workers can work in a day and/or in a week. For example, workers in AB can’t work more than 12 hours in a day, while workers in NT and NU can’t work more than 10 hours a day and 60 hours a week. But these limits don’t apply to all workers; for example, managerial workers are typically exempt. And some provinces, including BC, MB and NB, don’t set any limits on the maximum number of hours workers can work (although BC does bar employers from requiring or allowing workers to work excessive hours or hours detrimental to their health or safety).
These limits could represent a standard of how many hours it’s reasonable to make workers work for purposes of negligence law. In other words, if you make a worker work longer than the maximum hours permitted under the employment standards law and then allow him to drive home, your violation could be strong evidence that you were negligent. And as a result, you could be found liable for any traffic accident that the worker causes while driving home.
But didn’t the worker in the Gartner case make that very argument and lose? Yes, but here’s why. True, the employer did make the worker work longer hours than allowed under the AB Employment Standards Code. So if the worker had driven directly home and gotten into the accident, the employer might have been liable. But that’s not what happened. The worker had a few drinks on the way to a friend’s house first. There, he was offered a place to stay for the night but turned it down. Then, when he was driving home from his friend’s, he crashed. These intervening events got the employer off the hook.
Insider Says: Certain industries have their own hours of work regulations. For example, the federal trucking regulations were recently updated to set new limits on the number of hours truck drivers can work without rest.