Distracted Driving: The Tip of the Iceberg

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

November 1, 2014

In April 2014, the Occupational Safety and Health Administration (OSHA) announced that it will treat any employer that does not have a policy prohibiting texting while driving as being
in violation of the General Duty Clause. This notice did not include emailing while driving, but it is likely that this will eventually be prohibited as well. There are also other actions
that can cause distracted
driving—such as eating or drinking—that have not been addressed by OSHA. It remains to be seen if future regulations will deal with these issues.

Although this new regulation specifically prohibits the use of cell phones while driving, using a cell phone while elsewhere on the job site can also present a risk. An OSHA
representative is very likely to issue a citation if they see an employee using electronics on the job site in a way that poses a safety hazard.

As mentioned above, OSHA’s announcement in April categorized a lack of a policy prohibiting texting while driving to be a General Duty Clause violation. The General Duty Clause of the
Occupational Safety and Health Act requires an employer to provide its employees with a place of employment that is free of recognized hazards that will cause, or are likely to cause,
death or serious physical harm.
In its announcement, OSHA stated that it considers texting while driving to be a recognized hazard. With this statement, OSHA has indicated that it considers texting while driving to be a
significant issue—one that cannot wait for the standard setting procedure under the Administrative Procedures Act (APA). The APA sets procedures for establishing a new administrative
standard. With OSHA, the
procedure can take 8 to 10 years. By using the General Duty Clause, OSHA is establishing guidelines that will have the force and effect of law, unless challenged. OSHA has set criteria
that, if not met, will subject an employer to a General Duty Clause violation.

In an April 15, 2014 OSHA QuickTake, the agency announced that texting while driving is considered in violation of the General Duty Clause if the employer does one or more of the
following:

  1. Requires workers to text while driving;
  2. Creates incentives that encourage or condone texting while driving; and/or
  3. Structures work so that texting while driving is a practical necessity.

At the same time, OSHA stated that it also requires a clear, unequivocal, and enforced policy against texting while driving. Such a policy should include the following elements:

  1. A prohibition on texting while driving;
  2. Established work procedures and rules that do not make it necessary for employees to text and drive in order to complete their work;
  3. Clear procedures, times, and places for the safe use of texting and other technology or communications;
  4. Safe communication practices incorporated into worker orientation training; and
  5. Elimination of incentives that encourage workers to text while driving.

Remember, OSHA will not only be looking at your policy if you have an accident involving an employee while driving. A compliance officer may make this one of the standard programs he or
she asks to review during the records review part of an inspection.

It is also important to remember that safety while driving, or avoiding distracted driving, is not limited to texting while driving. Employers should also consider another major area
that causes distraction: using a cell phone to place or take calls while driving. It is difficult, if not impossible, for an individual to devote complete attention to one task if they are
also using a cell phone.
While the best choice is to completely turn off cell phones while driving, this is unlikely to happen. The next best option is to make intelligent choices about phone use. This entails
several things:

  1. When driving, use your phone only with Bluetooth or in the hands-free mode.
  2. Do not place calls while driving, unless you can do so without taking your eyes from the road.
  3. Cease all cell phone use when in heavy traffic or bad weather.
  4. If you cannot place or answer a call hands-free, pull over to answer or place the call.
  5. Never text or email while driving.
  6. Never read a text or email while driving.

The preceding points are the minimum steps that should be taken to ensure safe cell phone usage while driving. Having a cell phone usage policy that prohibits cell phone use of any kind
while driving may help your company mitigate potential damages. Such a policy would be useful if an employee had a motor vehicle accident involving cell phone use while completing company
business. If an employee
has an accident while using a cell phone, others involved in the accident may claim third-party damages against your company by alleging that your employee’s cell phone use was a cause of
the accident. In fact, a business may be at risk for a lawsuit in such a circumstance if they do not have a cell phone policy. While such a policy is not a guarantee of eliminating or
mitigating damages, it is a
significant step in the right direction. Of course, if an business verbally contradicts its policy by giving the employee work that requires cell phone use will driving, this will nullify
the benefits of the cell phone policy.

Thinking beyond cell phone use while driving, it is important to consider the use of these devices in other situations on the job site. Cell phone usage should be prohibited in work
areas while work activity is going on. For example, cell phones should not be used while employees are engaged in potentially hazardous activities. More specifically, they should not be
used when their usage could
make a regular work activity hazardous.

Cell phones should certainly be prohibited when an employee is operating any heavy equipment, including forklifts or other powered industrial trucks. The hazards associated with the
operation of such equipment are magnified many times when employees are not dedicating 100% of their attention to what they are doing; and the hazards of operating a piece of powered
equipment on a job site increase
exponentially when employees use a cell phone to make calls or send and receive text messages or emails.

Another issue is the use of such devices while an employee is doing manual labor. Again, employees’ safety is jeopardized whenever they are in a situation in which they cannot devote
100% of their attention to the job at hand. There have been incidents of employees walking into skylights or off the edge of an elevated work platform while concentrating on a cell phone
call or returning a text
message or email.

By publishing its policy on texting while driving, OSHA is sending a message to employers that it is starting to look more closely at what employees are doing on a job site. If OSHA is
taking the position that texting while driving is a recognized hazard, it is only a small step to acknowledging any cell phone use while driving to be a recognized hazard. From there, it
is an even smaller step to
recognize that the use of a cell phone on a construction site is a recognized hazard. Employers have an opportunity to be ahead of the curve on this issue; do not stop with a policy that
prohibits texting while driving. To ensure worker safety, it is advisable to move onto a broader policy that prohibits cell phone usage of any kind on any job site, except during
recognized breaks or with the
permission of a foreman or superintendent.