By Casey M. Cosentino and Eric J. Conn

“Texting while driving” is an epidemic in America, which has prompted forty-two states and the District of Columbia to ban (completely or partially) this conduct for drivers.  Here’s a map of the U.S. states that have enacted some ban on texting while driving.  Studies suggest that texting while driving distracts drivers’ cognitive focus and removes their eyes from the road and hands from the wheel.  It is not surprising, therefore, that distracted driving is attributed with sixteen percent (16%) of all traffic fatalities in 2009.

The consequences of texting while driving are also seen in work-related accidents, as motor vehicle accidents are among the leading cause of worker fatalities.  Due to the political attention that texting while driving is garnering and the high number of employee deaths caused by motor vehicle accidents, OSHA has launched a Distracted Driving Initiative in partnership with the Department of Transportation to combat this safety issue.

According to OSHA, sending and reading text or email messages is a workplace safety hazard that employers are legally obligated to prevent under the OSH Act’s General Duty Clause.  For instance, OSHA finds that workers are exposed to a hazard when an incoming text from a supervisor or an urgent email request from a client draws their focus away from the road.   Notably, formal or informal incentive programs (i.e., monetary bonuses for making a certain number of deliveries per hour or day) are the heart of OSHA’s Distracted Driving Initiative.  The agency believes the root cause of texting while driving is employers’ policies that leave employees no option but to text or email on the go.   Accordingly, employers violate the General Duty Clause when their policies or practices:

  1. Require texting/emailing while driving;
  2. Create incentives that encourage or condone texting/emailing while driving; or
  3. Structured in such a way that texting is a practical necessity for workers to carry out their job duties.

When OSHA determines that employers’ policies contribute to cell-phone related accidents, it will issue General Duty Clause citations, which carry maximum penalties of $70,000 per Willful or Repeat violation or $7,000 per Serious violation.  As a result of the Distracted Driving Initiative, employers should implement a workplace safety culture that explicitly prohibits texting while driving on the job or in company-owned vehicles.  Indeed, employers should draft or revise cell-phone usage policies to declare all vehicles “text-free zones,” including posting of such signage in company vehicles.

Effective policies should alert managers, supervisors, and employees that the company neither requires nor tolerates sending or reading text/email messages while driving.  The policies should also stress safe communication practices and incorporate procedures that eliminate financial or other incentive programs that encourage or require texting while driving in order to carry out job duties.  Additionally, employers should review such policies during training, education sessions, and new hire orientation programs.

OSHA has promised swift action upon learning of distracted driving accidents or receiving credible complaints from employees that their employers require or organize work so that texting while driving is a practical necessity.  OSHA is forthright in its position on distracted driving, and it will not hesitate to issue citations and penalties where necessary.  Given OSHA’s aggressive enforcement record over the past three years, we expect the agency to be on the lookout for a poster-child employer to use as an example for others under the new Distracted Driving Initiative.