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Employees Texting While Driving May Result in Fines for Employers

Most of us have sent a text while driving, even though we all know that this practice can be dangerous. Distracted drivers pose a deadly risk to everyone on the road. The National Highway Traffic Safety Administration (NHTSA) estimates that in 2008, the most recent year for which data is available, 5,870 people lost their lives and another 515,000 were injured in police-reported crashes in which one form of distraction was noted on the crash report. Now OSHA could make employers liable when employees text behind the wheel.

OSHA steps in

OSHA has taken notice of this issue and is taking action. OSHA is prepared to start issuing citations and fines to employers for distracted driving by employees. OSHA compliance changes will first focus on texting while driving. Employers should prohibit any work policy or practice that requires or encourages workers to text while driving.

David Michaels, the Assistant Secretary of Labor at OSHA, said OSHA is prepared to start issuing citations and fines to employers for distracted driving by employees who text when they drive. Employers will be held responsible if they create a situation where employees are required to use their phones while driving, or have a strong incentive to do so, and that conduct results in an accident that causes personal damage.

What the new rules would mean for employees who text while driving

OSHA does not plan to enact a new rule or standard under the Occupational Safety and Health Act. Instead, these new OSHA compliance elements and fines will fall under the Act’s “general duty” clause, which requires employers to provide a safe workplace free of recognized hazards.

OSHA has also launched a multi-pronged initiative that includes the following:

  • A website which carries a video message and an open letter to employers from Assistant Secretary Michaels. OSHA will showcase model employer policies and team up with employer and labor associations to communicate this message;
  • OSHA will forge alliances with the National Safety Council and other key organizations including Mercer ORC Networks to help reach out to employers, especially small employers, to improve employee safety by combating distracted driving and prohibiting texting while driving;
  • OSHA will place a special emphasis on reaching young workers—working with other Labor Department agencies, as well as alliance partners and stakeholders; and
  • When OSHA receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, they will investigate and where necessary issue citations and penalties to end this practice.

What employers need to know

OSHA is calling on employers to create a text-free zone by prohibiting employees from texting while driving for work. President Obama has already done so for federal workers. He signed an Executive Order in 2009 that bans federal employees from texting while driving on the job or using government equipment.

In addition, more than half the states currently have some type of law that limits cell phone use by drivers. North Dakota recently became the 31st state to ban text while driving.

Employers should review current employee policies to ensure they do not require employees to text while driving for their jobs. Employers should also organize the work of their employees so that texting while driving is not a practical necessity, even if it’s not officially required.

They should also make sure employees are aware of the changes. This could be accomplished as a part of regular labor law compliance training sessions, an addition to in-house safety posters, a published change in the employee handbook, or a policy statement employees would read and sign.

Retaining these signed notices in an employee safety folder would help to protect employers from some liability if employees violate the policy and are involved in a traffic accident while texting.