The Law @ Work

Employers Wise to Enforce New Hands-Free Electronic Device and Cell Phone Law

By Marylou Fabbo

On February 23, 2020, Massachusetts law began prohibiting drivers from using any electronic device while driving unless they are doing so “hands-free.” The law applies to those who are 18 years old or over; it is illegal for drivers under 18 to use any electronic device at all even in hands-free mode. Considering an employer’s risk of liability associated with employee distracted driving and the new law restricting cell phone and electronic device use while driving, employers should draft (or update) and distribute a distracted driving policy that encompasses the law’s hands-free requirements.

Can’t Touch This!

Under the new law, drivers are not permitted to hold or even touch a cell phone whether or not they are at a red light or stop sign. Keep in mind that the new law isn’t limited to cell phones. Drivers also are not permitted to operate their tablets, laptops, etc., in anything other than hands-free mode.  The only time touching of an electronic device is permitted is to activate hands-free mode and that’s only if the device is installed or properly mounted to the windshield, dashboard, or center console in a non-obstructive manner. 

Hand-held cell use is permitted if the vehicle is both stopped and not located in a public travel or bike lane. It’s also permissible to hold a cell phone to call 911 to report an emergency, but drivers are encouraged to pull over and stop first. 

Penalties for violating the law are $100 (first offense); $250 and mandatory completion of distracted driving educational program (second offense);  and $500, insurance surcharge, and another mandatory completion of the distracted driving program (third offense). 

Employers Pay Big for Employees’ Distracted Driving

Employers can face significant liability for accidents caused by their employees’ use of cell phones while driving. A company that provides cell phones to employees, requires or expects the use of cell phones, or permits management to call employees who are out on the road is waiting for trouble. In numerous cases, employers have paid the price for employee accidents caused by cell phone use while driving: 

  • International Paper Co. paid $5.2 million to settle a personal injury suit when an employee using a company-supplied cell phone rear-ended a vehicle, ultimately leading to the amputation of the victim’s arm.
  • Dykes Industries lost a $21 million lawsuit filed after its employee who was making a sales call hit and killed a motorcyclist. Coca-Cola was also faced with a $21 million verdict against it as the result of a distracted driving accident.
  • Smith Barney settled a case for $500,000 when one of its stockbrokers who was making a cold call on his cell hit and killed a 24-year old woman.
  • A lawyer who was making a business call on her cell phone while driving home from work was ordered to pay a victim’s family $2 million, and her law firm settled its part of the suit. While on her cell, the attorney hit a teenager, who she thought was a deer, and kept driving. In addition to the monetary liability, the attorney was disbarred and served a year in jail for hit-and-run.

To reduce your employees’ risk of being involved in a motor vehicle accident and your organization’s risk of being held liable for accidents caused by an employee’s cell phone or device use, employers should implement a no-tolerance distracted driving policy that incorporates Massachusetts’ new law.

Distracted Driving Policy

Employers should draft, distribute, enforce, and annually redistribute distracted driving policies. 

Cell phones and electronic devices aren’t the only distractions for drivers. Eating, drinking, putting on makeup, searching through a handbag or briefcase, and flossing are other actions that have resulted in accidents because the driver simply is not focused on what he or she should be doing, namely driving. A good policy incorporates the prohibitions of the Distracted Driving Law but also goes above and beyond to prohibit employees from engaging in any activity that causes the employee to pay less attention to the road than he or she should. Examples of restricted activities should be listed, but other forms of distraction should not be ruled out. (We know of one employer that requires all cell phones to be kept in the trunk of the car while driving.) 

One thing that should be included in the policy and made clear to employees is that the company won’t tolerate distracted driving. The policy is only worthwhile if you actually enforce it, so once you “threaten” disciplinary action for violating it, you have to put your money where your mouth is. Employees who find out about other employees facing disciplinary action or even termination are more likely to fall in line with expectations. 

Once a policy has been approved, it must be distributed to all employees. We recommend that if you have the resources to do so, you consider hiring someone who can educate your workforce on safe driving practices, which can benefit them both at work and in their personal lives. Distributing the policy during a distracted driving educational session is ideal, but if you can’t do the training, it’s still important to educate your employees about the policy when you distribute it. We recommend that the policy be redistributed annually at the beginning of the calendar year or when you re-distribute your sexual harassment policy as required by state law. 

If you don’t already have a distracted driving policy, you should put one in place as soon as possible. If you need assistance with drafting a new policy or updating an existing policy, please feel free to contact any of the attorneys at Skoler Abbott.

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