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BFV Perspectives, Corporate Matters, | Dec 01, 2010

Distracted Driving: An Important Message for Employers

At the beginning of 2010, the Georgia legislature joined the heavily publicized country-wide movement to institute a ban on texting while driving.  Beginning on July 1, 2010, O.C.G.A. § 40-6-241.2 made it illegal for drivers over eighteen years of age to “operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data”. (O.C.G.A. § 40-6-241.1 likewise prohibits texting while driving for the under eighteen crowd).

While some continue to debate whether this law can practically be enforced, there is little dispute that devastating consequences can result from distracted driving.  Now, for employers across the country, the effects of distracted driving are reaching beyond the roadways and into the workplace.

In light of the alarming statistics about driver impairment resulting from distracted driving, the Occupational Safety and Health Administration (OSHA) recently weighed in on the issue. Recognizing the significant number of workers who spend their workdays on the road visiting clients and customers or delivering goods and services, the Department of Labor through OSHA announced its “Distracted Driving Initiative” on October 4, 2010.

OSHA is calling on all employers to prohibit any work policy or practice that requires or encourages workers to text while driving. It states that “[i]t is imperative that employers eliminate financial or other incentives that encourage workers to text while driving”.  Employers who require texting while driving or otherwise structure the workplace so that texting while driving is “a practical necessity” will be viewed as violating the Occupational Safety and Health Act of 1970 (the “OSH Act”).

OSHA reminds employers that “[i]t is your responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.”  Furthermore, when OSHA receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, OSHA will investigate and, if necessary, issue citations and penalties to end this practice.  It explains that it is prepared to act quickly in these enforcement efforts.

As another part of this “Distracted Driving Initiative”, OSHA is beginning an education campaign aimed at employers.  This includes sharing model workplace policies with employers and reaching out specifically to small business owners and those that hire younger workers.

While the “Distracted Driving Initiative” is new, employers should be aware that their liability can also be established through more traditional legal theories of respondeat superior (Latin for “let the master answer”) and negligence.  In other words, an employer can be held liable for injuries caused by its employees if the employees are performing their job duties when the accident occurs.  For instance, in the context of texting and driving, if an employee is involved in a car accident while in the middle of responding to business emails, the employer could be held liable to the injured party under the theory of respondeat superior.  Courts have already found that an employer could be held liable for injuries resulting from an accident where an employee was using a company-provided phone or using the phone for work purposes and/or where the employer did not prohibit such conduct. [1] Thus, we can expect to see future case law holding employers liable for injuries caused by employees’ texting and driving.

Distracted driving habits are certainly not confined to one specific industry.  Businesspeople, lawyers, delivery people, and other service providers alike often find mobile communication a necessary evil.  Nevertheless, given the recognized threat to employee safety as well as the prospect of significant liability, it is important for employers to evaluate their current workplace policies and implement a specific policy that prohibits employees from operating a motor vehicle while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to, a text message, instant message, email or Internet data.

[1] See Hunter v. Modern Cont’l Const. Co., Inc., 287 Ga. App. 689, 691, 652 S.E.2d 583, 584 (2007) (denying summary judgment in favor of employer where plaintiff came forward with evidence showing that the employee may have been on his cell phone regarding company business when the accident occurred).

BFV Perspectives, Corporate Matters, | Dec 01, 2010