The logic is simple: There continues to be a significant number of employees who have Blackberries, I-Phones, and other similar devices (including many that are issued by an employer). And, there continues to be a significant number of employees who participate in social media and social networking sites through these devices. And, despite ridiculous gas prices, we all drive. It should go without saying, then, that a good number of your employees may be engaging in some form of texting or other social media activities while driving.
It is a truism that texting while driving is a problem. We see references to it on the overhead electronic signs on the highway, and we read news stories about it on our Blackberries. Two separate governmental bodies have recently taken up the cause and announced stepped-up efforts to reduce the problem in a way that ultimately will have a big effect on employers.
For one, OSHA’s Assistant Secretary of Labor for Safety and Health recently announced at a symposium that OSHA intended to prevent accidents that are caused by drivers who are distracted while operating vehicles during the course of their employment. According to sources at the symposium, the Assistant Secretary stated: “If we find an employer has set up a situation where an employee has a strong incentive or is required to use their phone, and that had resulted in an accident that has any sort of personal damage, those are the first cases we want to take on because we think that message is a strong one.” While the Occupational Safety and Health Act does not yet contain standards or rules pertaining specifically to texting or social media use while driving, action could be taken under the Act’s general duty clause, which requires employers to provide a safe workplace that is free from recognized hazards.
Similarly, in an industry-specific initiative, the United States Department of Transportation recently proposed a rule banning mobile phone use by drivers of trucks carrying hazardous materials in commerce. The proposed rule would also prohibit employers subject to the rule from requiring or permitting drivers to do so. Many jurisdictions already have this type of ban on texting-while-driving in place.
Employer Take Away: What should you as an employer take away from this development?
It is not only those of you in the transportation industry, or who employ outside or “traveling” sales people, who must take notice. As technology has made it easier for your employees to tap into your company’s systems from outside the office and perform work 24/7, particularly on company-issued devices or in company vehicles, it is critical that you consider the following:
(1) Consider whether there is a need in the first instance to provide company-issued devices to all employees, and, if so, consider providing hands-free devices to your employees who do have them.
(2) Make sure you have a well-defined (and consistently enforced) policy and safety program addressing these issues.
By affirmatively considering these issues now, you may avoid penalties for violations of the law, as well as potential liability to third parties for an act of a distracted employee.