Q & A: Employee Driver Issues


Question Corner

Employee Driver Issues

By Jason R. Mau


Q: We are looking to hire a couple of employees who would spend most of their work time making deliveries to customers and running general errands for the business. Are we allowed to check applicants’ driving records to help cut down on the risk of liability for reckless driving?

A: Idaho law does not prohibit an employer from obtaining driving records as part of the application process as long as you get the applicant’s written consent.  In addition to record checks, you should also consider adopting policies related to driving expectations to help reduce liability.  Here, liability could potentially arise at any time during the scope of employment, as these employees would be in their vehicles during most work hours.  One suggestion would be a requirement that prohibits cell phone use while driving, or at least requiring hands-free devices for any cell phone use.  

Q: Our current job application asks for the applicant’s Social Security number. Is that legal? I feel it might not be a good idea with all the high-profile news of identity theft.

A: As long as you are taking all of the necessary security precautions to prevent breaches and are redacting the Social Security numbers from any reporting or public record disclosures, you have little to no cause for concern.

Q: One of our employees recently told his supervisor about a medical condition that could affect his work performance. What laws should we take into consideration when deciding how to proceed?

A: The two laws that you as an employer should be most aware of in this situation, provided you are a covered employer, are the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).  The ADA may require that the accommodation process be undertaken if the condition substantially limits one or more major life activities and the employee could still perform the essential functions of the position with a reasonable accommodation.  Under the FMLA, there are employer notice requirements that may require a follow-up with the employee if it is determined that the condition will require the employee to take an extended absence from work. 


Q:  Our insurance policy includes Hired Non-Owned Auto Liability.  Is it legal to state in our employee handbook that all vehicle nts occurring while working must be submitted against the employee’s auto insurance policy first, and that the firm policy will be used as a secondary measure?  

A: There is not a prohibition on requiring that an employee submit an accident to the employees’ auto insurance policy first in the event that an accident occurs during a work errand.  In fact, most personal insurance policies will provide protection for business related uses, as long as the employee is not carrying people or goods for a fee.  The personal insurance policies are usually purchased for a specific vehicle, and thus, the policy would be the primary policy for any accident and would be looked to first to provide protection. 

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.