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MO Workers Compensation Legal Update - Hands-free cell phone usage while driving

Brad Young of Harris, Dowell, Fisher & Young, LC

August 1, 2023 - Governor Mike Parson signed into law a bill (effective August 28, 2023) that bans all non-hands-free use of phones by drivers for anything other than a simple touch. This means no texting, no changing music or a podcast, and no changing an address for GPS while operating a vehicle. Furthermore, drivers won’t even be allowed to hold a phone while talking during a phone call.


More on the details of this law can be found here.

The Workers Compensation question is this - - can employers/insurers reduce the workers compensation benefits payable to claimants who violate this new law? Answer: Maybe…but not unless the employer updates the company’s policy manual.


Under the MO Workers Compensation Act, the employer/insurer can reduce the benefits paid to a claimant by 25% - 50% if the claimant’s injury is caused by the failure of the claimant to follow the employer’s safety rules. Section 287.120.5 states:


“Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.” (Emphasis Added)


I’ve had several clients contact me over the past few months asking, "If a claimant breaks this law and has an accident, can we reduce the comp benefits paid to the claimant?"


Violation of a state law is NOT, in and of itself, enough to trigger the benefit-reduction elements of section 287.120.5 outlined above. Unless the employer has a safety rule that prohibits the non-hands-free use of a phone while driving, violation of this state law alone is insufficient to reduce benefits under section 287.120.5.


RECOMMENDATIONS


This situation is similar to the one employers face regarding the Missouri Seat Belt Law (section 307.178). Employers/insurers cannot reduce benefits for unbelted drivers and passengers unless the employer has a specific policy requiring the use of seatbelts.


Based on this, I recommend that all employers update their policy manuals to both require the use of seat belts for all drivers and passengers who are performing work-related duties, as well as prohibiting the non-hands-free use of phones while driving vehicles for work.


The final question is this…can an employer have a safety rule that simply states that all drivers and passengers in vehicles must obey all state laws while in vehicles that are being used for a work-related purpose? This seems like a nice “catch-all” rule that would encompass both existing laws and future laws. While this MAY work both now and in the future, there is currently no Missouri case that allows for the reduction of workers compensation benefits based on the wording of such a “catch-all” safety rule. You should obtain specific legal advice on this from your attorney before relying on a “catch-all” rule like this.


However, employers that specifically require seatbelts and prohibit the hands-free use of phones should reasonably expect to be able to reduce to the workers compensation benefits payable to claimants who violate these specific safety rules.


If you have any questions, please let me know. I’m happy to help at byoung@harrisdowell.com.

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