Cell phone liabilities: if you or your staff use cell phones on the job, know your responsibilities - Tech

Tools of the Trade, March-April, 2004 by Pat Curry

Cell phones are as important in the construction business as nail guns and cordless drills. But while they provide a major convenience, recent studies have revealed the safety risks of using a cell phone while driving.

In the past three years, cell phone usage has been an issue in several lawsuits, and employers are being held responsible if a worker causes an accident while talking on the phone. In December 2001, a Miami jury awarded $21 million to a woman who was hit and severely injured by a Dykes Lumber Industries salesman while he was talking on his cell phone, says Patty Butler, an employment relations attorney in Atlanta who has written on the subject.

"Cell phone usage is distracted driving, like a lot of other things," says Tim Heerdt, risk control director at The St. Paul Cos., a major business insurer. "The difference is that you can subpoena records and prove they were on the phone."

Plus, police agencies are starting to include the information on accident forms.

Interestingly, the same problems don't seem to exist with two-way radios, which are as much a staple of the home-building business as cell phones. Heerdt says that's because those calls are usually much shorter.

Butler recommends that to protect themselves, companies establish a written policy restricting cell phone usage that employees must read and sign. The restriction should include the use of hands-free headsets, since studies indicate it's the conversation, not the physical act of holding the phone, that contributes to accidents. She admits that enforcement of the policy is difficult, but for now, it's about the only way employers can defend themselves if there's a lawsuit.

"It's better than nothing," Butler says. "At least it heightens awareness about the situation."

The St. Paul Cos.' sample policy states:

* Cellular phones should not be used while operating a vehicle.

* Allow voice mail to handle your calls. Return messages at your safe convenience.

* If you need to place or receive a call, pull off the road to a safe location.

* Ask a passenger to make or take the call.

* Inform regular callers of your driving schedule and when you will be available to talk.

* Keep your hands on the wheel and your eyes and mind on the road while driving.