Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
In our highly mobile society, it is practically impossible for an employer to conduct business without utilizing vehicles operated by employees in the course of the workday. As will be seen, the use of vehicles by impaired drivers exposes the employer (and the employee) to significant liabilities.
When an employee operates a vehicle, the employer has potential liability under state and federal law, including worker’s compensation, common law, criminal law, workplace violence, and the Americans with Disabilities Act (ADA).
Worker’s Compensation
If an employee operates an employer owned or provided vehicle (or the employee’s own vehicle with employer’s consent), the employer is potentially liable for worker’s compensation benefits to the employee for an injury arising out of and in the course of employment. This liability will exist in many cases even if the employee is an impaired driver due to alcohol or drug usage or has a physical or mental impairment. If the impaired driver causes an accident and injury to a co-employee in the vehicle, the co-employee will likely also be entitled to worker’s compensation benefits.
Vehicle Refueling
While not necessarily related to an impairment, employers also face potential liability during refueling of vehicles. Over the last several years, there have been reported accidents during vehicle refueling occurring under two scenarios:
• An employee starts the process of vehicle refueling, returns to the vehicle interior, and slides across the seat, picking up a charge of static electricity. When the employee exits the vehicle and removes the fuel nozzle from the vehicle, the static charge is released, causing a spark, which has resulted in ignition of the gasoline vapors and severe burn injuries and vehicle damage.
• An employee attempts to use a cell phone during the refueling process and an electrical charge ignites the gasoline vapors. While there is a dispute about the extent of this hazard, there are now warning signs on many gasoline pumps telling the customer not to use a cell phone during refueling.
Cell Phones
Another area where employers face potential liability is the use of cell phones while driving on company business. In the event that the employee’s attention is diverted and an accident occurs, the employer faces potential worker’s compensation liability to the employee as well as third party common law liability to third parties involved in an accident who sustain personal injury or property damage.
Common Law Liability
In the event that an employee is involved in an accident, the employer is likely to be faced with common law liability (negligence) to the third party if the accident occurred while the employee was engaged in the employer’s business. Liability for negligence can include damages for loss of income, pain and suffering, loss of consortium, and, if the third party can establish that the employer knew that such employee was impaired and was allowed to continue to operate the vehicle (and perhaps had a history of vehicular accidents), there is a potential for punitive damages.
Another area of potential liability can arise when employees are permitted to consume alcohol during the workday, which can sometimes be expected when the employee may be engaged in client entertainment where consumption is reasonably anticipated. Unfortunately, some employees may be known to use drugs and alcohol during the workday which may impair the employee’s ability to safely operate the vehicle and expose the employer to such liability.
Prior Driving History
Another area of potential risk involves allowing an employee to operate a vehicle without investigating the employee’s prior driving history to determine whether there have been accidents or motor vehicle code violations. These are appropriate areas of inquiry during the hiring process if the job will require use of a vehicle. The employer can also contact the secretary of state’s office to verify the potential employee’s driving history. If the employer utilizes a third party to conduct the investigation, the requirements of the Fair Credit Reporting Act will likely apply, requiring that certain written notifications be provided to the candidate.
Criminal Law Liability
If the employee operates the vehicle in a manner that constitutes a violation of the criminal code (e.g., vehicular accident causing death or serious injury with the requisite level of criminal intent or negligence), the employee faces personal criminal liability as well as the employer for civil damages.
Workplace Violence
Another disturbing phenomenon is the impact of workplace violence involving the use of vehicles, including “road rage” and resulting tragic accidents, as well as the possession of weapons in a vehicle owned or provided by the employer that may be used by the employee to cause a tragic shooting incident. Many employers have failed to establish any policies regarding the safe operation of vehicles or the possession of weapons in employer vehicles.
Americans with Disabilities Act
The ADA can often impact the use of vehicles by employees on company business. An employee who has a disability (physical, mental, or emotional impairment of a major life activity) may be qualified for and entitled to operate a company vehicle. Thus, employees who may have diabetes, epilepsy, or a prior history of drug or alcohol abuse, may be entitled to operate the vehicles so long as the employee complies with any medical requirements (e.g., medication or other treatment). If the employer prohibits such employee from operating a vehicle because of the disability, there may be a violation of the ADA.
On the other hand, an employer may lawfully restrict such employee from operating a vehicle if the employee engages in conduct that creates a “direct threat” of serious injury or death to the employee or to third parties (e.g., epileptic employee fails to take prescribed anti-seizure medication). When this type of situation occurs, the employer must conduct a fact specific investigation, in some cases requiring medical consultation on the extent of the threat, before taking disciplinary action.
Recommendations
The employer must develop a written policy relating to the use of vehicles by employees for business purposes, which should cover issues such as use of cell phones, weapons possession, valid drivers license, reporting of all traffic violations (and history of violations), prohibition of drug and alcohol consumption (or restrictions on permissible usage), and medical certification of ability to operate vehicle for potential safety issues (e.g., vision, epilepsy, diabetes, cardiovascular conditions, etc.).
Then train the employees in the policy and obtain employee written acknowledgement of receiving the policy and training. Be sure to enforce the policy and document that enforcement through investigations of accidents, traffic violations, and discipline violators, and ensure adequate liability insurance is in place.
If the employer identifies these areas of potential liability and develops and enforces its policy, it will substantially reduce the risks associated with employee use of vehicles.
Labor and the Law - February 2005 Render