Fleet Safety

More Focus on the Road

More employers are taking formal steps toward addressing the workplace cost of distracted driving.
By: | March 23, 2017 • 7 min read

Distracted driving, particularly due to texting or other cell phone usage, is increasingly resulting in accidents, as well as workers’ compensation claims for employee drivers.

While data is scant on whether distracted driving specifically has resulted in higher workers’ comp claims, many insurers can infer the rise by reviewing their claims involving motor vehicle accidents and government statistics on distracted driving.

For example, the percentage of AF Group’s claims involving motor vehicle accidents rose from roughly 2 percent in 2009, to nearly 3.5 percent at year-end 2016, said Bob Lapinski, a spokesperson for the Lansing, Mich.-based holding company for Accident Fund Insurance Co. and three other workers’ comp insurers. During that same period, the National Highway Traffic Safety Administration documented a spike in distracted driving accidents, Lapinski said.

That trend alone should push employers to institute policies to minimize distracted driving among their workforce, said Dave Brandolino, loss control manager at Chicago-based Third Coast Underwriters, another division of AF Group. Brandolino is based in Nashville.

“It all starts with the hiring process,” he said.

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Employers should check candidates’ motor vehicle driving records to see if there any incidents due to distracted driving, as well as CSA scores assembled by the Federal Motor Carrier Safety Administration, which measure compliance, safety and accountability, Brandolino said.

It’s also import to implement best practice hiring guidelines, such as establishing minimum age requirements and road experience.

Dave Brandolino, loss control manager, Third Coast Underwriters

Employers should also establish a strong accountability program for drivers using telematics — electronic devices installed in vehicles that transmit data about how the driver is operating the vehicle, such as whether the driver is speeding, hard breaking, rolling or swaying the vehicle, he said. Cab cameras can also be activated by such events.

“We encourage employers to establish a tracking and monitoring system of those data points to develop forward-looking metrics,” Brandolino said. “This is also an important tool to hold drivers accountable by coaching and training, rewarding and disciplining them based on defined standards and individual performance.”

There are also devices on the market that block cell phones from making phone calls and answering emails and texts if the driver is moving, he said.

“We encourage the use of technologies that combat distracted driving because you just can’t put a price on a life,” Brandolino said.

Formalize a Policy

Chris Hayes, second vice president of transportation risk control at Travelers in Hartford, Conn., cited several statistics by the National Safety Council: the average work-related motor vehicle injury claim costs $72,540, which is twice as much as other work-related injuries. Moreover, 54 percent of drivers said work would motivate them to do a distracting activity while driving — such as making a phone call, searching for a location using a GPS system, or reviewing and sending emails.

According to the Travelers’ 2016 Business Risk Index, 65 percent of the insurer’s business clients have employees that use their personal vehicles for business activities.

“So it’s important for organizations to include that in their vehicle safety plan, because they still face liability risk and employee safety risk even if employees are driving their personal vehicles on behalf of the company,” Hayes said.

Organizations should put together formal policies around not using cell phones while driving, having all drivers sign off on the policy, and keeping documentation of that, he said. These policies should be regularly communicated to help reinforce the message that distracted driving is a risk that should be avoided.

“Organizations should also promote that culture to other employees in the office, to let them know that if they contact employees in the field, [they should] make sure those employees are not driving when they take the call or answer a text or email,” Hayes said. “Employees who are driving should know that they don’t have to immediately respond to people in the office trying to contact them, but rather they can wait until they are stopped in a safe place to respond.”

One way to avoid the risk of distraction from the phone is to keep it in the glove compartment or on the passenger seat out of reach, so they can focus on driving instead, he said.

“If a person is driving 55 miles per hour and takes their eyes off the road for five seconds, they will have traveled the length of a football field without watching carefully or safely,” — Randy Thornton, president, risk control, York Risk Services Group, Lafayette, La.

Even before cell phones were prevalent, there was distracted driving due to fatigue, eating while driving, fiddling around with the radio, or reaching behind to grab something in the back seat, among other things, said Edward Canavan, vice president, workers’ compensation practice & compliance at Memphis-based Sedgwick. Canavan is based in Santa Ana, Calif.

“Now with cell phones, distracted driving is a huge problem – there’s around a half million people a year that are injured as a result of distracted driving, which also impacts workers’ comp claims,” Canavan said.

The no-fault system within workers’ comp adds another layer of complexity to a claim, he said. Most likely the claims will have to be paid, but in some jurisdictions, the benefits can be altered due to negligence on the part of the injured worker.

“But the negligence has to have met a certain threshold and this has not been tested because the criteria is so high,” Canavan said. “An example would be in California, where the act causing the injury would need to meet the threshold of being serious and willful misconduct. This could be a solo accident and not necessarily involve another person.”

Preventive Strategies

From a loss prevention and risk management standpoint, there is a lot of technology that can help to discourage texting while driving, he said. For example, there’s a mobile app that will give a driver the fastest route based on road conditions, traffic and construction, but it detects motion and asks people if they are the driver or the passenger.

Chris Hayes, second vice president of transportation risk control, Travelers

“However a person could just lie, so an even better type of technology would be actual devices installed in cars that prevent cell phone use while driving,” Canavan said. “Within several years, these types of devices might be required by the National Transportation Safety Board and standard in all cars.”

Debra Levy, senior vice president, quality management and WC practice leader at York Risk Services Group in Atlanta, speculated on why there is no hard data on workers’ comp claims for distracted driving: very few employees are willing to admit they were using their phone either talking or texting at the time of an accident, especially if there is a company policy against it.

“Unless an employer is going to investigate phone and text usage after every motor vehicle accident occurrence, this data will not be captured,” Levy said.

To lessen accidents due to distracted driving, employers must have a strong distracted driving policy that includes random checks on both company and personal phones during expected travel times, she said. Once an employer commits to a distracted driving policy, they must follow the policy diligently to get the desired effect on driver behavior. They must also follow through on disciplining employees who violate the policy.

“If employers don’t follow through on an implemented distracted driving program, they could find themselves in a difficult liability situation if the accident is caused due to an employee violating the distracted driving policy,” Levy said.

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Anything that can distract a person can be distracted driving, including spilling coffee or dropping something — “anything that takes your eyes off the road,” said Randy Thornton, president, risk control at York Risk Services Group in Lafayette, La.

“There’s a really powerful factoid: If a person is driving 55 miles per hour and takes their eyes off the road for five seconds, they will have traveled the length of a football field without watching carefully or safely,” Thornton said.

Texting while driving is illegal in most states, and the federal Department of Transportation also has been successful in banning texting and the use of cell phones while driving among commercial drivers, he said. The government also has good public awareness campaigns, including an informative website, distraction.gov, in which employers can download forms to use in obtaining a pledge to not engage in distracting activities while driving.

York also recommends that employers regularly educate their drivers, and not underestimate the fact that new drivers and experienced drivers alike need to be educated and reminded of the dangers of distracted driving.

“You’ve got to monitor it, you’ve got to measure it, you’ve got to train around it. It’s a circular process by nature,” York said. “There is always employee turnover, and before you know it, you have 10 new drivers. It’s important that everyone is operating under the same set of dynamics.”

Katie Kuehner-Hebert is a freelance writer based in California. She has more than two decades of journalism experience and expertise in financial writing. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Absence Management

Establishing Balance With Volunteers

It’s good business to allow job-leave for volunteer emergency responders, whether or not state laws apply.
By: | January 10, 2018 • 7 min read

If 2017 had a moniker, it might be “the year of the natural disasters,” thanks to a phenomenal array of catastrophic or severe events— hurricanes, tornadoes, wildfires, ice storms and floods.

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Combined with smaller-scale fires and other emergencies, these incidents tax the resources of local and state emergency services, often prompting the need to call volunteer emergency responders into action.

But as lean as most organizations are already running, volunteer activities can sometimes cause friction between employees and employers. Handling conflicts the wrong way can potentially lead to legal headaches, harm employee morale and batter a company’s reputation.

State by State Variations

Most employers are aware of the various federal and state leave laws protecting their employees, including family and medical leave, pregnancy leave and military leave. But leave laws that protect the livelihoods of volunteer emergency responders are more likely to fly under the radar of some HR managers and risk managers.

Such laws don’t exist in every state, but more than 20 states do have some type of law in place to protect volunteers including emergency responders, firefighters, disaster workers, medical responders, ambulance drivers or peace officers.

Marti Cardi, vice president of Product Compliance for Matrix Absence Management

The laws vary broadly. Nearly all specify that such leave be unpaid, and that employees disclose their volunteer status to employers and provide documentation for each leave. But there is a spectrum of variations in terms of what may trigger an eligible leave. Some, for instance, apply for any emergency that prompts a call from the volunteer’s affiliated responder group. Others may require a government declaration of emergency for the law to be triggered.

While many of the laws do not explicitly require employers to let employees leave work when called to an emergency during a shift, most specify that an employee may be late or even miss work entirely without facing termination or any other adverse employment action.

Some states mandate a maximum number of unpaid leave days that a volunteer can claim. But others may place more significant burdens on employers. In California, for instance, employers with 50 or more employees are required to grant up to 14 days of unpaid leave for training activities in addition to any leave taken to respond to emergency events. For multistate employers, keeping on top of what obligations may apply in each circumstance can be a challenge.

Significant Risks

Large or mid-sized employers may rely on absence management providers to keep them in compliance. For smaller employers though, it may be as simple as looking up a state’s law via Google to find out what’s required. However, checking in with the state department of labor or the company’s attorney may be the best way to get the correct facts.

“I would caution that just because you don’t find something [on the internet], it doesn’t mean it’s not there,” said absence management and employment law attorney Marti Cardi, vice president of Product Compliance for Matrix Absence Management.

For example, Cardi said, an obscure Texas law provides job-protected leave for volunteer ham radio operators called into service during an emergency.

Cardi said employers should task HR to investigate the laws in each state the company operates in, and to ensure that supervisors are educated about the existence of these laws.

“If a supervisor is told by one of his or her employees, ‘Sorry I’m not coming in today … I’ve been called to volunteer firefighter duty for the [nearby region] fire,’” she said, you want to be sure that the supervisor knows not to take action against the employee, and to contact HR for guidance.

“Training supervisors to be aware of this kind of absence is really important.”

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An employer that does terminate a protected volunteer for responding to an emergency may be ordered to pay back wages and reinstate the employee. In some cases, the employee may also be able to sue for wrongful termination.

And of course, “you don’t want to be the company in the headlines that is getting sued because you fired the volunteer firefighter,” she added.

If an employer bars a volunteer from responding, the worst-case scenario may be a third-party claim. Failure to comply with the law could give rise to a claim along the lines of “‘If you had complied with your statutory obligation to give Jane Doe time to respond, my loved one would not have died,’” explained Philadelphia-based Jonathan Segal, partner at law firm Duane Morris and managing principal of the Duane Morris Institute.

“That’s the claim I think is the largest in terms of legal risk.”

Even if no one dies or is seriously injured, he added, “there could still be significant reputational risk if an individual were to go to the media and say, ‘Look, I got called by the fire department and I wasn’t allowed to go.’”

The Right Thing to Do

What employers should be thinking about, Segal said, is that whether or not you have a legal obligation to provide job-protected leave for volunteer responders, “there’s still the question of what are the consequences if you don’t?”

Employee morale should be factored in, he said. The last thing any company wants is for employees to perceive it as insensitive to their interests or the interests of the community at large.

“Sometimes employers need to go beyond the law, and this is one of those times,” — Jonathan Segal, partner, Duane Morris; managing principal, Duane Morris Institute

“How is this going to resonate with my employees, with my workforce, how are people going to see this? These are all relevant factors to consider,” he said.

There’s an argument to be made for employers to look at the bigger picture when it comes to any volunteer responders on their payroll, said Segal.

“Sometimes employers need to go beyond the law, and this is one of those times,” he said. “Think about the case where’s there’s not a specific state law [for emergency responders] and you say to a volunteer, ‘No, you can’t leave to deal with this fire’ and then people die. You as an employer have potentially played a role, indirectly, because you didn’t allow the first responder or responders to go,” he said.

The bottom line is that “it’s the right thing to do, even if it’s not required by law,” agreed Cardi.

“I feel that companies should have a policy that they’re not going to discipline or discharge someone for absences due to this kind of civic service, subject to verification of course.”

Clear Policy

While most employers do strive to be good corporate citizens, it goes without question that employers need to guard their own interests. It’s not especially likely that volunteer responders will try to take advantage of the unpaid leave allowed them, but of course, it could happen.

That’s why it’s important to have policies that are aligned with state laws. Those policies could include:

  • Notifying the company of any volunteer affiliations either upon hire or as soon they are activated as volunteers.
  • Requiring that employees notify a supervisor as soon as possible if called to an emergency (state requirements vary).
  • Requiring documentation after the event from the head of the entity supervising the volunteer’s activities.

If at some point it becomes excessive – someone has responded to emergencies five times in nine weeks, then it’s time to examine the specifics of the law and have a discussion with the employee about what’s reasonable, said Segal. It may also be time to ask specifics about whether the person is volunteering each time, or are they being called.

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In some cases, the discussion may need to be about finding a middle ground, especially if an employee has taken on an excessively demanding volunteer role.

“We encourage volunteers to pick the style that best fits their schedule,” said Greta Gustafson, a representative of the American Red Cross. “Disaster volunteers can elect to respond to disasters locally, nationally, or even virtually, and each assignment varies in length — from responding overnight to a home fire in your community to deploying across the country for several weeks following a hurricane.

“The Red Cross encourages all volunteers to talk with their employers to determine their availability and to communicate this with their local Red Cross chapter.”

Segal suggests approaching it as an interactive dialogue — borrowing from the ADA. “Employers may need to open a discussion along the lines of ‘I need you here this week because this week we have a deliverable on Friday and you’re critical to that client deliverable,’” he said, but also identify when the employee’s absence would be less critical.

No doubt there will be tough calls. An employer may have its hands full just trying to meet basic customer needs and need all hands on deck.

“That may be a situation where you say, ‘First let me check the law,’” said Segal. If there’s a leave law that applies, “then I’m going to need to comply with it. If there’s not, then you may need to balance competing interests and say, ‘We need you here.’” &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]