By Brent I. Clark, Erin Dougherty Foley, and Craig B. Simonsen
By Proclamation, President Obama has declared December 2015, to be “National Impaired Driving Prevention Month.” 80 Fed. Reg. 75781 (December 3, 2015).
The President declares that “no person should suffer the tragedy of losing someone as a result of drunk, drugged, or distracted driving….” He notes that drunk drivers kill more than 10,000 people annually, and “about one-third of traffic deaths in the United States involve a driver with a blood alcohol concentration above the legal limit.” Additionally, “driving under the influence of drugs, an increasingly common occurrence, carries the same risks as drunk driving and is just as avoidable.” Driving distracted, including while using a cell phone, can lead to tragic outcomes that are also preventable. The Proclamation provides links to federal materials and resources, including www.Distraction.gov, www.NHTSA.gov/DriveSober, and www.WhiteHouse.gov/ONDCP/DruggedDriving.
There are real issues for employers related to impaired and distracted driving. For instance, we had previously blogged about a United States Court of Appeals for the Eleventh Circuit case that addressed the issue of an employer’s liability for terminating a commercial truck driver who suffered from alcoholism, a condition that is often considered a disability under the Americans with Disabilities Act (ADA). The focus of the Court’s analysis was on the relevant Department of Transportation (DOT) regulations which provided that a person with a “current clinical diagnosis of alcoholism” was not qualified to drive a commercial motor vehicle. The regulations did not, however, instruct who would make the final determination of whether an employee had a current diagnosis of alcoholism—the employer or the DOT (or other) medical provider. In this case, following the plaintiff-employee’s leave of absence to receive treatment for alcoholism, he obtained clearance by a DOT medical examiner that he was fit to return to work. However, the defendant-employer received contrary guidance from the plaintiff’s alcohol treatment counselor, who diagnosed him with “alcohol dependence or alcoholism.”
In another example, we previously blogged about employees using cellphones and other devices while driving. There we noted that the trend of banning all cellphones or other portable devices while driving even where permitted by local law was based on a number of factors. First, there have been a large number of reported jury verdicts or settlements where companies have been found liable for accidents caused by their employees while driving and using their cellphones. There was also a growing effort by the federal and state governments advocating that no one should use a cellphone or other portable communication device while driving. Consider that the National Transportation Safety Board (NTSB) recommended in December of 2011 that all states and the District of Columbia ban any cellphone use behind the wheel, becoming the first federal agency to call for an outright prohibition on telephone conversations while driving. Notably, NTSB findings and other research has shown that drivers using even hands-free cellphones aren’t much safer than using hands-on cellphones because just talking on the phone reduces the brain power focused on driving by 37 percent.
Employers are urged, at this time of year especially, when company parties and events are common-place, to review corporate policies to ensure that it has minimized its risks from drunk, drugged, or distracted driving. As noted in a recent Law360 Analysis, “How To Hold A Holiday Party Without Inviting Legal Hassles,” “the potential legal exposure doesn’t have to shut down the party entirely.” The authors provide these steps, summarized here, to keep the party going while mitigating the risks:
- Make and Enforce Clear Social Gathering Policies;
- Temper Alcohol Consumption;
- Remind Leaders to be Leaders;
- Make Sure Employees Get Home Safely;
- Keep the Party Universal; and
- Make it Voluntary
Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Environmental, Safety & Toxic Torts Group or the Workplace Counseling & Solutions Team.