New Partnership Between DOL and DOT Could Mean Increased Pressure on Employers to Combat Distracted Driving

In 2009, nearly 5,500 people died and a half million were injured in crashes involving distracted driving, according to a recent survey by the National Highway Traffic Safety Administration. In fact, distraction-related fatalities represented 16 percent of the overall traffic fatalities in 2009. Due to the increasing number of motor vehicle accidents attributed to distracted driving, and because the leading cause of work-related fatalities each year is motor vehicle accidents, the Department of Transportation ("DOT") and the Department of Labor's Occupational Safety and Health Administration ("OSHA") have announced a partnership to combat distracted driving, particularly in the workplace.

The DOT and OSHA announced their partnership at the second national Distracted Driving Summit held on September 21, 2010. To kickoff the Summit, U.S. Transportation Secretary Ray Lahood announced that he is initiating new rulemaking to prohibit commercial truck drivers from texting while transporting hazardous materials. He also announced that two rules proposed at last year's summit to combat distracted driving have become "law of the land."

First, the Federal Motor Carrier Safety Administration, an agency of the DOT, announced a final rule prohibiting commercial bus and truck drivers from texting while operating commercial motor vehicles. The final rule takes effect on October 21, 2010. Drivers may be fined up to $2,750 and their employers up to $11,000 for violations. Drivers guilty of multiple violations will have their commercial licenses suspended.

Second, the Federal Railroad Administration announced a final rule that would prohibit railroad operators from using cell phones or other electronic devices while in the driver's seat. The rule was published September 27, 2010, and it will take effect 180 days after publication. Companies and individuals who willfully violate the rule could face penalties of up to $17,000 and up to $100,000 for any violation where the circumstances warrant it.

During the Summit, Secretary of Labor Hilda Solis announced that OSHA will join the DOT in a concerted effort to address distracted driving in the workplace. As part of this concerted effort, OSHA outlined several steps that it will take to persuade employers to combat distracted driving:

• An education campaign aimed at employers, calling on employers to prevent occupationally related distracted driving. The campaign was launched during Drive Safely Week, which was October 4-8.
• The publication of an open letter to employers on www.osha.gov and the posting of model employer policies.
• Alliances with the National Safety Council and other organizations to reach out to employers, especially small employers.
• Targeting young workers to ensure that they are not subject to distractions while driving on the job or operating equipment by coordinating with other DOL agencies, alliance partners, and stakeholders.
• Investigating and issuing citations where necessary to end the practice of distracted driving when OSHA receives a credible complaint that an employer requires texting while driving.

OSHA's enforcement authority reaches all private sector employers. Secretary Solis made clear that the OSHA Act obligates employers to provide a workplace free of serious recognized hazards. Since it is well-recognized that texting while driving dramatically increases the risk of a motor vehicle accident, she said that "it is imperative that employers eliminate financial or other incentives that encourage workers to text while driving. Employers who require their employers to text while driving – or who organize work so that doing so is a practical necessity even if not a formal requirement – violate the OSHA Act."
Given the attention that the distracted-driving issue has garnered over the last few years, OSHA's new focus on distracted driving in the workplace is not surprising. OSHA's focus on distracted driving in the workplace comes on the heels of an executive order signed by President Obama last October banning federal employees from texting while driving. His order covered both federal employees who use government-provided cars or cell phones and federal employees who use their own cell phones and cars to conduct government business.

Distracted driving, undoubtedly, presents a challenge for employers who rely on employees to travel, perform errands, make deliveries, or drive as a principal function of their job. In January 2010, Larkin Hoffman published an article discussing the liability employers may face when an employee, while driving and using a cell phone, causes an accident and injures another party. We encouraged employers to consider adopting or adapting policies and practices concerning employee cell phone use. The recent partnership between the DOT and OSHA to combat distracted driving, particularly in the workplace, confirms the necessity of such policies.

Although it is not entirely clear how the DOT and OSHA will proceed in their efforts to combat distracted driving in the workplace, one thing is certain: employers must be proactive and attempt to prevent distracted driving by employees. As mentioned earlier, written policies prohibiting the use of personal and company-provided electronic devices for business purposes while driving are a good starting point. Employers should also require employees to sign a written acknowledgment of the policy, and take steps to monitor compliance with and consistent enforcement of the policy. Since approximately 30 states have existing laws preventing at least some drivers from using cell phones or text messaging while driving, employers' policies must, at a minimum, conform with all applicable local, state, and federal laws.

Our experienced Labor and Employment Law attorneys are available if you have questions regarding distracted-driving policies. We can discuss the needs of your business, weigh the possible risks and benefits associated with a distracted-driving policy, and assist you in developing and implementing a distracted-driving policy for your company.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.