On the front lines with Fisher Phillips: Driving safety in the workplace

by Travis Vance and Pamela Williams

Driving safety in the workplace: Where the rubber meets the road

Motor vehicle crashes are the leading cause of work-related deaths in the United States. Besides the tragedy of lost life, crashes cost employers $60 billion every year in medical care, legal expenses, property damage and lost productivity.

According to the U.S. Department of Transportation’s National Highway Traffic Safety Administration, 37,461 people died on U.S. roadways in 2016. Distracted driving played a role in 3,450 of those deaths. Considering that millions of employees operate or ride in vehicles as part of their jobs, it’s not surprising that OSHA targets and fines employers who permit or encourage distracted driving.

Distracted driving – anything that takes a driver’s attention from the road or hands off the wheel – is a recognized hazard under the General Duty Clause of the OSH Act. As of January 2019, penalties for willful violations of this clause can range up to $132,598 per occurrence.

Take note that the Federal Motor Carrier Safety Administration may preempt OSHA and the OSH Act with respect to commercial carriers. Employers should consult OSHA and FMSCA guidance on these agencies’ respective responsibilities for transportation safety. Where the OSH Act is not preempted by another federal agency, however, OSHA generally claims jurisdiction over safety and health. Examples may include vehicles engaged exclusively in intrastate travel or those that do not meet the definition of a commercial carrier.

Distracted driving: Know the risks

The National Safety Council estimates that nearly one-quarter of all motor vehicle crashes involve distracted driving. Any number of activities can distract motorists when they’re behind the wheel. The NHTSA lists use of a mobile phone, texting, watching a video, eating or drinking, changing the radio station, grooming, looking at a map or GPS or talking to a passenger as common distractions while driving. Perhaps the most distracting activity was texting while driving. Technology has exacerbated the problem of distracted driving. Hand-held and hands-free cellular devices have simultaneously put the world at our fingertips and heightened the compulsion to multitask.

As of November 2018, 47 states and Washington, D.C., had banned texting while driving. That doesn’t stop people from doing it, however. According to OSHA, reaction time for drivers talking on a mobile phone is the same as that of a drunk driver. Perhaps more surprising was that a 2013 University of Utah study concluded the hands-free use of cellular technology was no less distracting than hand-held use. Specifically, researchers found voice-to-text was potentially more distracting than physically texting while driving.

Implement distracted driving policies

Employers that require their employees both to use mobile technology and to drive on company time (whether in a company vehicle or the employee’s own vehicle) should make sure they have competent distracted driving policies in place. Even employers that do not formally require texting or mobile phone usage may run afoul of the OSH Act if they organize work so that texting or participating in phone calls is necessary or if they provide incentives that could foreseeably result in employees texting or using hand-held devices while driving.

Effective distracted driving policies should, at a minimum:

• Prohibit impaired driving or being under the influence of alcohol and/or drugs

• Require employees to use seatbelts while driving

• Prohibit texting or email while driving

• Prohibit the use of hand-held devices while driving and

• Prohibit eating and drinking while driving.

In crafting such policies, employers should be aware of all state and local laws and regulations.

Enforce distracted driving policies

Written policies are only as good as the training employees have received on the policies and as the employer’s enforcement of its policies. Educate all employees on your company’s distracted driving policies and be sure they understand the consequences if they fail to follow those policies. Have employees sign a written acknowledgment that they received and were trained on the distracted driving policy. Requiring periodic refresher training can assist with enforcement and compliance.

Employees who fail to follow your policies should be disciplined. Because employees may often drive alone and unsupervised, it may be difficult to discover a violation of your company’s distracted driving policy. You may want to consider implementing controls on company-issued mobile devices to prevent employees from texting or calling while a vehicle is in motion. Some employers have installed cameras or monitoring systems in vehicles to discourage distracted driving.

In our 24/7, digitally connected world, employers must proactively implement and enforce policies to keep workers safe while they are driving on company time. Failing to do so can result in litigation costs, OSHA fines, medical expenses and lost productivity. Employers should consult knowledgeable legal counsel to help them develop and implement distracted driving policies that follow best practices and protect their employees and business in the best manner possible.

Travis Vance is a partner in the firm’s Charlotte office. He can be reached at tvance@fisherphillips.com or 704•778•4164. Pamela Williams is a partner in the firm’s Houston office. She can be reached at pwilliams@fisherphillips.com or 713•292•5622. Visit their website at fisherphillips.com.

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