Thursday
Oct272016

OSHA Takes a Stand on Distracted Drivers

To pick up on a theme from last week's "When Texting Is a Bad Thing" post from SCTC consultant Art Yonemoto, too many of us get lured into communicating while we’re driving or otherwise distracted when we know better.  Desensitized as we are to the "don’t be a distracted driver message," the fact is that the number one cause of workplace fatalities is distracted driving and/or operation of complex machinery or processes,  It’s all about messaging, talking and game playing, and it’s crazy dangerous... particularly since we can’t tell who is doing what in the car next to us on the highway. Yup… the one that’s whizzing by at 65 mph or faster.

Knowledge that distracted driving poses hazards simply isn’t enough, particularly when you consider the potential cost not only to the employee whose distraction leads to an accident, but also to the employer with its deeper pockets and thus much more to lose. Drivers who text, chat, play games en route think that they’re multitasking when in fact they’re toggling between activities. As they do so, they reduce their ability to recognize hazards and diminish their spatial awareness—and that’s before we ever considered the possibility of how a driver/operator might react should one of those pesky batteries explode.

In the event of a distracted driving accident, two types of liability can apply. The first is to the driver, who can face both civil and criminal penalties should damages be incurred.  The second is vicarious liability, which allows for the employer to be held accountable for the actions of its employee under state agency law for both personal injury and property damages incurred.  Naturally, claims against employers tend to be far steeper than claims against individual employees, and can feel like a two-by-four to the forehead to them.  On the positive side for employers, however, having an effective and current mobility policy in place can lead to lower fleet insurance rates.  Employers should speak to their insurance providers for specifics that apply to their respective circumstances.

In order to draw additional and focused attention to this matter, the Occupational Safety and Health Administration (OSHA) has issued a  Distracted Driving Initiative that should put employers on notice to prohibit, in absolute terms, any “work policy or practice that requires or encourages workers to text while driving.”  The two magic words here are “practice” and “encourages.”  In the strongest possible terms, these words suggest that OSHA will now be looking beyond what employers' existing documents may say “forbidding” employee texting and driving to their actual practices and expectations.  That is, if the employee signs a document that shows his or her agreement not to text and drive but the company 1) doesn’t enforce the policy and 2) actively “looks the other way” because it requires quick responses, OSHA will be very unhappy. A representative from an unhappy OSHA is not anything an employer wants on its doorstep.

Relying on the General Duty Clause of the OSHA Act of 1970, OSHA is taking positive steps to force employers to take necessary action.  The relevant reads as follows: “Each employer shall furnish to each of his [sic] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his [sic] employees.”  Although it hasn’t been exactly codified under labor law as a “recognized hazard,” the fact is that every driver—or news junkie for that matter—is aware that texting while driving is unsafe. Period.

What OSHA is seeking is a “clear, unequivocal and ENFORCED” (the emphasis here is mine) policy against texting while driving, according to an open letter to employers from David Michaels, Assistant Secretary of Labor for OSHA.  More specifically, OSHA will deem a company to be in violation of these terms if the employer, by policy or practice, either requires texting while driving, or if it creates incentives that either encourage or condone such conduct.  Further, if an employer essentially allows (by deed or simply inaction) that texting is a practical necessity for workers to carry out their jobs, OSHA will consider such practice to be a clear violation of its rules.  Key words here are “practice” and “condone.”  These words place an affirmative requirement on employers to not ignore—or pay lip service—to mobility policies. Not only do the policies exist, but they must be enforced.

Labor and employment lawyer Gene Connors of Reed Smith LLP offers takeaway guidance.  "This OSHA Initiative-- read RULE!!-- adds justifiable and reasonable legal 'bite' to 'remind' employers not just to talk the talk but to walk it too by regularly monitoring and enforcing on-their-face strong and clear smartphone safety policies.  Comply with this initiative and be literally and legally safe. Or 'play ostrich' and wait for OSHA and juries to prove that ignorance is not bliss." Certainly driving, or operating complex machinery or processes that require the full attention of the driver/operator cannot, under the employer’s watch, either be ignored or overlooked.  The risks are just too high.

Two final points on this issue. First, a mobility policy needs to be a living, breathing document that changes as technologies and capabilities warrant. The policy written five years ago and signed by the new employee on his or her first day is likely not tailored to current work conditions or environments.  Employers must revise and employees review and acknowledge  the updated policies on a regular basis. Additionally, a policy that’s beautifully crafted and appropriate but not enforced isn’t worth the paper on which it’s written. This has always been the case, but since OSHA has made it clear that it will step in to manage this workplace hazard, enforcement of the terms and conditions laid out in the policy must be taken seriously by the employer.

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