Stricter Enforcement Coming up the Road.
By Adele Abrams
Most people are, by now, aware that the new technology that allows us to be “connected” wherever we are has perils when it is used behind the wheel. Cell phone conversations, as well as texting or reviewing emails, while driving have caused many fatalities and deaths and are now subject to legal constraints in many states that require “hands-free” calls and impose zero tolerance for text/emailing by drivers. In fact, according to the Bureau of Labor Statistics, occupational motor vehicle fatalities are the leading cause of occupational death in the United States. Moreover, occupational drivers are over-represented in crashes when compared with non-occupational drivers.
Some 30 states have already enacted bans on texting while driving and, in many of the remaining states, similar bans are in place at the county or city level.
In 2009, more than 200 state bills were introduced that ban cell phone use – both texting and talking. These laws make texting while driving illegal and could also expose employers to vicarious liability for accidents that result from their employees’ distracted driving. For example, in a Florida case, a lumber wholesaler settled for more than $16 million after one of its salesman hit and severely disabled an elderly woman while talking on a cell phone.
Although the Mine Safety & Health Administration (MSHA) has not weighed in on the subject (yet), other than noting that “most accidents happen because miners were distracted” in some of their publications, add the Occupational Safety and Health Administration (OSHA) to the list as a foe of distracted driving practices… with the difference that OSHA can hold employers responsible and impose civil penalties if their hourly or salaried workers engage in distracted driving while on the clock. This could encompass senior management, sales personnel, company truck drivers, and even those who use personal or rental vehicles while on company business or employment-related travel. Moreover, some of these personnel may fall under OSHA jurisdiction, because their duties bring them into OSHA-regulated worksites such as concrete or asphalt plants, or construction sites.
Don’t forget that distracted “driving” can also occur with tragic results within a company’s facilities: for example, if a forklift operator is chatting on his cell and runs over a co-worker. MSHA regulates that hazard under its standard 30 CFR 56.9101, which requires operators to maintain control of equipment while it is in motion.
On April 18, 2011, the U.S. Department of Labor – together with the National Institute for Occupational Safety and Health (NIOSH), the U.S. Department of Transportation (DOT) and Johns Hopkins University – held a one-day symposium on “Prevention of Occupationally-Related Distracted Driving.” The sponsors noted that “distracted driving
(including texting while driving and cell phone use) is a major cause of motor vehicle crashes. Many workers may be distracted while performing work-related driving or during vehicle operations. Reducing distracted work-related driving and increasing awareness of the risk to employees that result from distracted driving is an important mission for safety and health professionals, employers and employees.” The symposium was designed to bring together a variety of stakeholder groups who are interested in reducing work-related driving distractions and to develop recommendations for action, including new directions for research. This symposium included didactic presentations, interactive discussions, opportunities for networking and demonstrations of training materials.
Assistant Secretary of Labor for OSHA David Michaels has already announced his support for OSHA enforcement under Section 5(a)(1) of the OSH Act (the “General Duty Clause”) against employers who condone distracted driving. While texting is not specifically addressed under any OSHA regulation, the General Duty Clause can conceivably encompass distracted driving by stating “employers must provide a workplace free of serious recognized hazards.” Because it is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality, OSHA is taking the position that the employer could be cited and fined up to $70,000 if the company:
- Requires employees to text while driving.
- Organizes work so that texting is a practical necessity even if not a formal requirement.
- Provides any sort of financial or other incentives that encourage workers to text while driving.
Michaels stated that if OSHA receives a credible complaint that an employer enforces or encourages any of these activities, it will investigate and, where necessary, issue citations and penalties to end such practices. The impact on employers could be significant. According to a recent Pew Research Poll, 27 percent of all adults admit to texting while driving. Employers that do not "condone" the practice may still receive citations if the agency concludes that an employer that expects fast responses to calls or e-mails thereby "encourages" employees who are driving to respond to texts or e-mails, instead of using a hands-free device or pulling off the road.
Some of the symposium results were quite enlightening. Virginia Tech’s Transportation Institute researcher Jeffrey Hickman emphasized that both driver distraction AND driver inattention (due to factors such as stress, alcohol and fatigue – or even eating while driving) can be problems because they diminish attention necessary for safe driving. While talking on the phone while driving, drivers had longer brake response times, did not scan their mirrors as frequently, and failed to detect objects in the environment. In addition, more than 77 percent of unintended lane deviations involved distracted driving, as did 71.4 percent of all crashes.
Even employees seem to support aggressive action to bar distracted driving on the job. At the symposium, the Teamsters Union (which represents over 600,000 professional commercial drivers) endorsed regulation and legislation to ban texting while driving. In a unionized workplace, however, employer sanctions and new rules may need to be addressed as part of collective bargaining agreements.
Bottom line: What can employers do to protect their workers from the perils of distracted driving … and protect themselves from the perils of OSHA prosecution? Companies can most effectively insulate themselves from this enforcement effort by implementing and enforcing strong policies against the practice of texting while driving. Employees should be required to sign a policy explicitly stating they agree not to text while driving during work time, either as part of an employee handbook or when they receive any company-issued cell phone or texting device.
While OSHA’s recent position focuses on cell phone use and texting, and MSHA would prosecute any driver behavior that takes attention and control away from the operation of off-road equipment, employers should consider whether the use of other forms of hand-held communication or data entry while operating vehicles could create a hazard (e.g., walkie-talkies and GPS navigation systems) and ascertain whether evolving technology such as voice-activated equipment could eliminate some of these exposures while still facilitating communication. There may also be available certain applications in company-issued devices that can block the use of cell phones, including texting and internet access, while a vehicle is moving.
Further, any employees found to be texting while driving during work time should be disciplined, up to and including termination. This may require updating progressive discipline policies to ensure that this is a recognized infraction, and determining when it is appropriate to adopt a “zero tolerance” approach to this. Finally, senior management must “walk the walk” and lead by example by not engaging in distracted driving themselves, especially when those they supervise may be passengers in the vehicle.
As symposium participant Alex Gorsky, representing NETS (Network of Employers for Traffic Safety, www.trafficsafety.org ) stated:
“In today’s business world, we’re all increasingly wired. We’re surrounded by cell phones laptops…these are great tools that help increase our efficiency,
and our connectivity to customers. But NOT when we’re driving. Yes, we need to focus on driving our sales, but we need to do so SAFELY – for the benefit
of our employees, our families, and our communities."