February 2004

On January 20, 2004, Governor McGreevy signed a new law that bans the use of hand-held cellular telephones while operating a motor vehicle. The law allows drivers to use cell phones equipped with hands-free apparatus, provided the placement of the hands-free telephone does not interfere with the operation of any required safety equipment on a vehicle such as an air-bag.

The law includes exceptions as to when a driver may use a hand-held telephone while operating a moving vehicle. These exceptions are limited to situations when the driver:

• has reason to fear for his/her life or safety;
• believes that a criminal act may be committed against him/her or another person;
• is reporting a fire, traffic accident or a medical condition; or
• is reporting a reckless, careless or an unsafe driver who appears to be driving under the influence of drugs or alcohol.

This law supercedes any local ordinances regarding the use of cell phones. The penalty for violations range from $100.00 to $250.00 and drivers will not receive points on their license for violations. The cell phone law becomes effective July 20, 2004, six (6) months following its enactment.

RECOMMENDATIONS

We strongly recommend that all employers implement a policy on the use of cellular telephones while operating motor vehicles. If employees are using their cell phones on company business while driving, and have an accident, the employer and the employee run the risk that both company’s and the employee’s insurance carrier will deny coverage for the accident because the driver would have been acting in a reckless or careless manner in violation of the law. Likewise, if the employee suffers an injury while using a cell phone for business purposes while driving without a hands-free device, workers’ compensation insurance also may deny coverage for the same reasons.

Accordingly, your policy should not only advise employees of the law, but also should require that employees either use a hands-free device if talking on a cell phone while driving, or that they pull off the road to a safe location before using their cell phone. Notably, New York City has a similar law requiring the use of hands-free devices while using a cell phone while driving. We recommend that any employer who provides cell phones to its employees or reimburses employees for the cost of a cell phone, also provide the employees with a hands-free device or reimburse employees for the cost of a hands-free apparatus.