Expert Commentary

Driving While Phoning

In IRMI Update 23, subscribers were asked for their opinions on whether employers should adopt policies for cell phone use during dangerous activities, particularly driving. This article examines the responses, provides a bit of background, and offers possible options for employers to take to confront the problem.


Auto Risk Management
December 2001

In the IRMI Update 23 "Message from the Editor," Jack Gibson commented on the use of cellular telephones while driving. Jack asked readers for their opinions about the question of whether employers should adopt policies for cell phone use during dangerous activities, particularly driving. The response was emphatic on both ends of the spectrum. This article examines these responses, provides a bit of background, and offers possible options for employers to take to confront the problem.

Background

The number of cell phones in the United States has been steadily rising. Never close to the European percentages of usage, the U.S. market seemed to have a pocket of die-hards who refused to ever join the ranks of the wireless. With the events of September 11, however, cell phones have moved from status symbol to lifeline.

With such growth, the safety issues surrounding driving while phoning (DWP) are growing. Are cellular telephones inherently dangerous while driving? Do hand-free devices help? What about other distractions, such as children, food, music, Palm Pilots?

Legislating Safety

Some point to federal legislation as the solution to accidents caused by cell phone use while driving. Many IRMI Update readers don't think so, and neither does the National Conference of State Legislatures. At their August meeting in San Antonio, they passed a resolution opposing such legislation, calling it "a pre-emption of state sovereignty" and an "unfounded mandate on the states." However, some legislators disagree. Rep. Gary Ackerman, D-N.Y., and Sen. Jon Corzine, D-N.J., proposed a bill requiring states to adopt mobile phone restrictions by October 1, 2003, or lose up to $30 billion in federal highway funding. Hands-free devices would be exempt.

But is legislating safety the answer? New York became the first state to ban the use of cell phones while driving. Starting November 1, 2001, those caught using cell phones while driving-without the use of hands-free devices-received a verbal warning, which turned to a $100 fine on December 1, emergency use exempted. Courts could issue waivers to first-time offenders if hands-free devices were purchased, but this waiver is due to expire March 1, 2002. In 2001, 43 other states, including the District of Columbia and Puerto Rico, considered such legislation. Arizona, Massachusetts, and California passed less restrictive laws, with numerous local jurisdictions doing so as well.

International IRMI Update subscribers explained how their countries have legislated solutions. In Singapore, there is strict policy on the use of "handphones" while driving. Any driver caught red-handed is given a jail sentence and a hefty fine. In Australia, the Commonwealth Government recently passed Road Laws that restrict the use mobile phones while driving, hands-free devices excepted. Currently, 23 countries have some sort of restrictions regarding the use of cell phones while driving.

What Do Studies Show?

Studies abound. A soon-to-be-released University of Utah study supports the theory that it's the mental distraction, not the physical, involved in DWP that causes accidents. John Moffat, chairman of the National Association of Governors' Highway Safety Representatives, quoted a federal study showing that only 3 percent of accidents that resulted from driver inattention were caused by mobile phones. [Wireless Week 8/20/01] A recent National Safety Council study found that regardless of whether hands-free devices were used, conversing on cell phones led to significant decrements in simulated driving performance.

Another recent study, this one by AAA, stated that, based on 1995-1999 data, events that occur outside the car, adjusting the stereo, and interactions with others in the vehicle were frequently reported sources of driver distraction. Less frequently reported sources were moving objects in the vehicle, other objects brought inside the vehicle, adjusting vehicle or climate controls, eating, drinking, using a cell phone, and smoking.

In response to IRMI's article, the director of education of the Florida Association of Insurance Agents mentioned a study done by the Florida Highway Patrol. Of 100,000 accidents in 6 months, 600 were caused by driver distraction of any kind. Cell phones were down that list in third or fourth place. Another Florida study, by the University of South Florida, concludes that the effect of mobile phone use on driving is difficult to determine, with other factors such as the type of phone, conversation, and demographics of the user coming into play. That study reports people using mobile phones while driving were anywhere from 34 percent to 300 percent more likely to have an accident.

These studies and many, many others have not come up with a conclusive answer to the question of whether driving while talking on a cell phone is safe. Often, you can guess the answer by looking at the study sponsor. However, all point to the need for more studies and more detailed information on accident causes, particularly where cellular phones are involved.

Telematics

What about other distractions? With Americans in their cars commuting for longer periods in worse traffic, "helpful" devices to increase productivity are fast coming to the market, such as navigational systems, Internet/e-mail access, portable fax machines, real-time traffic advisories, stolen vehicle tracking, and even concierge services! Manufacturers point to safety features that free hands, such as projections onto the bottom of the windshield, mounted in front of the instrument panel, and text-to-speech or voice activation systems. But does eliminating the hands in the equation provide a solution to driver distraction?

Studies abound here as well, most noticeably by those producing this newfangled equipment. Ford Motor Co. is testing how distracting onboard devices are with its Virtual Test Track Experiment (VIRTTEX), a simulator designed to test driver reactions to various distractions, including phones, radios, navigation systems, etc.

General Motors' telematics subsidiary OnStar conducted a 5-year company study that showed little correlation between accidents and using its hands-free feature for making calls. In an August 27, 2001, interview in Wireless Week, OnStar President Chet Hubor said that "out of the 8.1 million calls placed from an embedded OnStar phone to one of the company's call centers, only two coincided with accidents severe enough to deploy an airbag." He said there was no evidence those two accidents were caused by the call.

Employer Response

Where does this leave employers? What is their obligation? Does a company bear vicarious responsibility if its employee's negligence while driving causes an accident? Can employer-instituted policies to restrict such dangerous behavior shield them from lawsuits? Or will such policies confirm-in the minds' of the courts-that employers realize what dangerous positions they are putting employees in when they supply cars and cell phones, and then require contact with the office or customers? What about enforcement? Remember employee privacy rights?

There does not seem to be one sure-fire solution. IRMI Update readers offered several suggestions and examples of employment policies that they have witnessed, including the following:

  • An employer cell phone use agreement, signed by both parties, coupled with a mandatory video that would dramatically explain the potential consequences of inadvertent distraction, even to the most adept multi-taskers.
  • Adding a driving safety policy to the "Prohibited Actions" section in the employment policy, prohibiting the use of a cell phone while the vehicle is in motion. Failure to comply could result in corrective action up to and including termination. Employees must sign an acknowledgement and agree to comply with its terms and conditions.
  • Fleet manual sections on cell phone use reminding drivers to use cellular telephones carefully while operating a vehicle; requesting that, if possible, employees pull off the road before initiating a cell phone call and, if not possible, keeping all calls as short as possible and trying to avoid allowing the phone conversation to distract the driver from traffic conditions, driving, and other drivers.
  • Employer recommendations or requirements of the use of hands-free devices for cellular telephones.
  • An outright ban all cell phone use while operating company-owned vehicles, while operating a personal vehicle while conducting company business, while using a phone furnished or required by the firm while operating any vehicle.
  • More general warnings in the company's safety policy stating that the primary function of the vehicle operator is to drive the vehicle; should additional tasks be necessary, they should be handled by a passenger/co-worker or the vehicle should be stopped in a safe place prior to undertaking any additional tasks which may inhibit safe operation of the company vehicle.
  • Company policies stating that employees who are charged with traffic violations resulting from the use of their phones while driving will be solely responsible for all penalties that result from such actions, whether on a personal or business cellular phone.

One reader submitted his company's policy, shown in Figure 1, that employees are required to sign:


Figure 1

Phone and Equipment Policy for Those Driving

The Company's policy is that cellular telephones and other electronic devices shall not be used while driving or at times when such use might be distracting to the user or otherwise cause a dangerous situation. Everyone should assure themselves that use of a cellular phone or other device does not interfere with safe performance of the job task being performed or the operation of any motor vehicle or mobile equipment.

Acknowledged:_____________

Date:____________________

How do firms go about developing such a policy? IRMI Update subscriber and risk tip provider Phil Moser, National Sales Manager of Advanced Driver Training Services, offered this suggestion:

Create a policy that works. Use a multi-disciplinary team to develop a policy that is practical, legal, and reflects your organization's risk tolerance. Some companies no longer provide cell phones and refuse to reimburse drivers for cell phone-related expenses. Others permit or provide cell phones, but very clearly specify how and when they may be used. If you allow cell phone use in emergency situations, be sure to define what constitutes an "emergency."

Reinforce the policy. Provide all new hires with a copy of the policy and review it in detail during their orientation. Cover safe cell phone use in all driver-training programs and in periodic reminders, such as in a company newsletter.

Inform drivers. Ensure that drivers understand the reason for the cell phone policy-including the increased odds of an accident, the potential liability for the company, and the possibility of personal injury or fatalities. Outline the ways in which cell phones pose these risks, so drivers will understand how to reduce their odds of an accident.

Provide alternatives. Offer drivers practical options that recognize their need to communicate while traveling. You might permit drivers to use the phone only when safely pulled off the road. Or you might instruct them to forward their calls to voice mail while driving, to avoid being distracted by an incoming call.

Conclusion

It's rather obvious at this point that the question of whether driving while phoning is inherently dangerous has yet to be answered. While state government is voicing its concern, the federal government has yet to speak. And the attitude of the judiciary has not been ascertained. Employers would be wise not to wait for guidance from our judicial and legislative branches.

Whether using the carrot—in the form of instructional videos, safety incentives, and suggestions for alternatives to DWP—or the stick—by instituting outright bans backed by termination or fines—employers have a duty to address the issue head-on. Proper risk management so dictates.


Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

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