Webinar slides - Ballard Spahr LLP

#disTracted!driving:
Legal Liability and Preventive Measures for Employers
Brian D. Pedrow, Esq.
[email protected]
Elisabeth R. Blattner-Thompson, Esq.
[email protected]
May 14, 2013
DMEAST #16799788 v.1
© 2013. Ballard Spahr LLP. All Rights Reserved.
Your Presenters
Brian Pedrow
[email protected]
215.864.8108
Babe Blattner-Thompson
[email protected]
801.517.6844
Agenda
• Scope of Problem
• Regulation of Drivers
• Regulation of Employers
• Employer Liability
• Best Practices
3
While behind the wheel, who has ...
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Viewed a video?
Applied make-up or shaved?
Tweeted?
Flirted with another driver?
Read a newspaper, magazine, or other document?
Looked up information on the Internet?
Sent or read a text message or email?
Taken or placed a phone call on a hand-held device?
Programmed a GPS device?
Rummaged through your handbag or briefcase?
Ate food and/or consumed beverages?
Changed or set your radio, CD player, Pandora settings?
Made eye contact with passengers while talking?
4
SCOPE OF THE PROBLEM
5
Scope of the Problem
•
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Problem of “epidemic” proportion
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More than 1 in 4 Americans admit to using cell phones and apps while
driving
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1 in 10 report being hit or nearly hit by a driver using a device
National Highway Traffic Safety Administration (NHTSA)
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Estimates 812,000 drivers in the U.S. are using hand-held phones at
any single moment
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1.1 million crashes annually are caused by distracted driving,
accounting for 500,000 injuries and 5,000 deaths
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DOT estimated employer costs: $3.6 million per fatality; $150,000
per injury
6
Scope of the Problem
•
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Governors Highway Safety Association Report (2011):
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Drivers are distracted between ¼ - ½ of time on road
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2/3 of drivers use cell phones while driving
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1/8 of drivers admit they text while driving
Post-crash investigations show at least one driver in 1530% of all crashes was distracted
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Probably an underestimate due to limits of post-accident
investigations
7
Assessing Risk Factors
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By the Numbers:
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0.08: Driver reaction time when distracted is worse than illegal
blood-alcohol concentration level
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23: Increased risk of crash while texting and driving
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4.6: Average number of seconds our eyes are diverted from road
when sending or receiving text message
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100 yards: Distance travelled at 55 mph during 4.6 seconds
13: Number of fatalities every day in US caused by cell
phone usage (2005 DOT Study)
8
Defining “Distracted” Driving
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National Highway Traffic Safety Administration:
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“any non-driving activity a person engages in while operating a
motor vehicle”
•
Visual distractions: eyes off road
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Manual distractions: hands off wheel
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Cognitive distractions: mind off task of driving
Governors Highway Safety Association: “Most distractions
involve more than one type of these types, with both a sensory
– eyes, ears, or touch – and a mental component.”
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Suggests hands-free phones are just as dangerous as hand-helds
9
REGULATION OF DRIVERS
10
Regulating Drivers
•
On April 9, 2013, National Transportation Safety Board (NTSB)
issued a report of a 2011 medical-helicopter accident and found that
the pilot’s personal text messaging contributed to the accident.
•
NTSB recommends ALL states ban use of cell phones while driving
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Current state regulation of drivers:
•
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39 states, District of Columbia, and Guam ban text messaging
for all drivers
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10 states, District of Columbia, and Virgin Islands prohibit all
drivers from using handheld cell phones while driving
What does your state regulate? Slides 12-15 contain a state-by-state
list of laws regulating texting and hand-held cell phone use.
11
State Laws
State
Prohibits Texting while Driving
Prohibits Use of Hand-Held Cell Phones
Alabama
Yes; All drivers.
No
Alaska
Yes; All drivers.
No
Arizona
No.
No
Arkansas
Yes; All drivers.
Yes; For drivers between ages of 18 and 21; For drivers in school
and highway work zones.
California
Yes; All drivers.
Yes; All drivers.
Colorado
Yes; All drivers.
No
Connecticut
Yes; All drivers.
Yes; All drivers.
Delaware
Yes; All drivers.
Yes; All drivers.
District of Columbia
Yes; All drivers.
Yes; All drivers.
Florida
No.
No.
Georgia
Yes; All drivers.
No.
Hawaii
No.
No.
Idaho
Yes; All drivers.
No.
Illinois
Yes; All drivers.
Yes; Only for drivers in construction and school speed zones, or
within 500 feet of an emergency
12
State Laws
State
Prohibits Texting while Driving
Prohibits Use of Hand-Held Cell Phones
Indiana
Yes; All drivers.
No.
Iowa
Yes; All drivers.
No.
Kansas
Yes; All drivers.
No.
Kentucky
Yes; All drivers.
No.
Louisiana
Yes; All drivers.
Yes; Only for novice drivers
Maine
Yes; All drivers.
No.
Maryland
Yes; All drivers.
Yes; All drivers.
Massachusetts
Yes; All drivers.
No.
Michigan
Yes; All drivers.
No.
Minnesota
Yes; All drivers.
No.
Mississippi
Yes; For drivers with a learner’s permit
and intermediate license holders and
school bus drivers.
No.
Missouri
Yes; For drivers 21 and younger.
No.
Montana
No.
No.
Nebraska
Yes; All drivers.
No.
13
State Laws
State
Prohibits Texting while Driving
Prohibits Use of Hand-Held Cell Phones
Nevada
Yes; All drivers.
Yes; All drivers.
New Hampshire
Yes; All drivers.
No.
New Jersey
Yes; All drivers.
Yes; All drivers.
New Mexico
Yes; For learner’s permit and
intermediate license holders
No.
New York
Yes; All drivers
Yes; All drivers.
North Carolina
Yes; All drivers.
No.
North Dakota
Yes; All drivers.
No.
Ohio
Yes; All drivers.
No.
Oklahoma
Yes; Only for learner’s permit holders,
intermediate license holders, school bus
drivers and public transit drivers
Yes; Only for learner’s permit and intermediate license holders
Oregon
Yes; All drivers.
Yes; For all drivers.
Pennsylvania
Yes; All drivers.
No.
Rhode Island
Yes; All drivers.
No.
South Carolina
No.
No.
14
State Laws
State
Prohibits Texting while Driving
Prohibits Use of Hand-Held Cell Phones
South Dakota
Yes; For learner’s permit and
intermediate license holders.
No.
Tennessee
Yes; All drivers.
No.
Texas
Yes; For bus drivers when a passenger 17
and younger is present; drivers in school
crossing zones; drivers younger than 18.
Yes; Only for drivers in school crossing zones.
Utah
Yes; All drivers.
Yes; Only for drivers under 18.
Vermont
Yes; All drivers.
No.
Virginia
Yes; All drivers.
No.
Washington
Yes; All drivers.
Yes; All drivers.
West Virginia
Yes; All drivers.
Yes; All drivers.
Wisconsin
Yes; All drivers.
No.
Wyoming
Yes; All drivers.
No.
Source: Insurance Institute for Highway Safety, Cellphone and Texting Laws, (May 2013), http://www.iihs.org/laws/cellphonelaws.aspx.
15
PA Regulation of Drivers
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PA has not adopted complete ban on cell phones while driving
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March 8, 2012: PA adopted prohibition on text-based
communications while driving
No driver shall operate a motor vehicle on a highway or trafficway in this
Commonwealth while using an interactive wireless communications device
to send, read or write a text-based communication while the vehicle is in
motion. A person does not send, read or write a text-based communication
when the person reads, selects or enters a telephone number or name in an
interactive wireless communications device for the purpose of activating or
deactivating a voice communication or a telephone call. (75 Pa. Cons. Stat.
Ann. § 3316(a)).
•
$50 fine if convicted of texting while driving. Id. § 3316(d).
16
PA Regulation of Drivers
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PA law preempts local ordinances:
... This section supersedes and preempts all ordinances
of any municipality with regard to the use of an
interactive wireless communication device by the driver
of a motor vehicle.” (75 Pa. Cons. Stat. Ann.
§ 3316(e)).
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Philadelphia Ordinance: no mobile devices while driving,
unless you have a head-set or bluetooth
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Other Local Ordinances: Harrisburg, Erie, Allentown,
Wilkes-Barre
17
PA Regulation of Drivers
•
Proposed expansion of PA Law: H.B. 2070 (proposed in
2009-2010 legislative session)
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Prohibiting use of interactive wireless communication
devices to text, e-mail, browse the Internet, or instant
message
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IWCD’s include: wireless telephone, personal digital
assistant, smart phone, portable or mobile computer, or
similar device which can be used for voice communication
18
NJ Regulation of Drivers
•
NJ prohibits all drivers from using wireless phone or
electronic communications device while operating moving
motor vehicle, unless device is hands-free. NJ Stat. Ann. §
39:4-97.3
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Exceptions:
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Band radio or two-way radio by commercial motor vehicles or
emergency vehicles
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Handheld phones if driver keeps one hand on wheel and: (1) has
reason to fear for life or safety or believes criminal act occurring;
or (2) is reporting to authorities fire, accident, road hazard, etc.
19
CA Regulation of Drivers
• CA bans handheld use while driving for all drivers.
Cal. Veh. Code § 23123
• CA also bans all cell phone use (handheld and handsfree) for bus drivers. Cal. Veh. Code § 23125
• CA bans all cell phone use (handheld and hands-free)
for drivers under the age of 18. Cal. Veh. Code §
23124
• All three regulations contain exception for emergency
use.
20
CA Regulation of Drivers
•
CA bans texting for all drivers, including writing, sending,
or reading a text message. Cal. Veh. Code § 23123.5
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Exception where the electronic device is configured to allow
voice-operated and hands-free operation to dictate, send, or listen
to a text message and it is used in that manner while driving
Violations are punishable by a fine of $20 for a first
offense and $50 for each subsequent offense. Cal. Veh.
Code §§ 23123(b), 23123.5(d), 23124(c)
21
CO Regulation of Drivers
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CO bans texting for all drivers. Colo. Rev. Stat. § 42-4-239
CO also bans all cellphone use for drivers under 18. Colo. Rev.
Stat. § 42-4-239(2)
Fines for violations range from $50 to $100
Exceptions include:
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Emergencies: An emergency occurs where the person “[h]as reason to
fear for such person’s life or safety or believes that a criminal act may
be perpetrated against such person or another person” or when the
person is reporting a “fire, a traffic accident in which one or more
injuries are apparent, a serious road hazard, a medical or hazardous
materials emergency, or a person who is driving in a reckless, careless,
or otherwise unsafe manner.”
- To contact a public safety entity
Colo. Rev. Stat. § 42-4-239(4)
22
UT Regulation of Drivers
•
A new law takes effect today that bans all cell phone use by drivers under 18.
Violations will result in a 25 dollar fine.
•
UT bans texting for all drivers. Utah Code Ann. § 41-6a-1716(2)
•
UT expressly excepts from coverage of the law:
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Using a handheld device to make or receive a call;
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For global positioning or navigation services;
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During a medical emergency;
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Reporting a safety hazard or requesting assistance for such a hazard;
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Reporting criminal activity;
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Providing roadside or medical assistance;
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For law enforcement or emergency personnel; or
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To operate a hands-free or voice-operated technology or system integrated in
the vehicle.
Utah Code Ann. § 41-6a-1716(3)
23
UT Regulation of Drivers
•
UT defines careless driving as committing a moving violation
(other than speeding) while “distracted.” Utah Code Ann. § 416a-1715
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•
“Distracted” includes “using a wireless telephone or other
electronic device unless the person is using hands-free
talking and listening features while operating the motor
vehicle . . . .”
Offenders of Utah’s texting law whose actions result in the
death of another may face up to 15 years in prison. Utah Code
Ann. §§ 76-5-207.5; 75-3-203
24
REGULATION OF EMPLOYERS
25
Federal Regulation of Employers
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Executive Order 13513: Federal Leadership on Reducing
Text Messages While Driving
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Prohibits federal employees from text messaging while driving
government vehicles or while on official government business in
personal vehicles
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Also prohibits use of any government-issued equipment while
driving, even if in personal vehicle
Since 2009, all procurement contracts with Feds “encourage”
contractor/subcontractor to adopt and enforce policies that ban
text messaging while driving company vehicles or on
government business or when performing any work for or on
behalf of government
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Regulation of Employers
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NHTSA: Driver Distraction Guidelines for In-Vehicle
Electronic Devices
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Non-binding, voluntary guidelines relating to use of original invehicle equipment used to perform secondary visual and manual
tasks
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List certain tasks that NHTSA believes inherently interfere with
driver’s ability to safely control his or her vehicle and which
should be disabled or unavailable unless vehicle is in park:
• Displaying images or videos not related to driving
• Displaying automatically scrolling text
• Requiring manual text entry of more than 6 button or key
presses during single task
• Requiring reading more than 30 characters of text (excluding
punctuation)
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Regulation of Employers
•
Federal Motor Carrier Safety Administration
(FMCSA)
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Texting Rule: Limits use of wireless communications devices by
commercial motor vehicle (CMV) drivers -- prohibits texting (both
reading and entering text) by drivers while operating in interstate
commerce
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Cell Phone Rule: Prohibits holding mobile phone, dialing (more than
one digit), or reaching for mobile phone in unsafe manner
•
Motor carrier employers must ensure compliance with rules;
prohibited from requiring or allowing drivers to text
•
Drivers are disqualified for two or more violations within 3year period
28
Regulation of Employers
•
Pipeline and Hazardous Materials Safety Administration (PHMSA):
Drivers of Hazardous Materials
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•
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In February 2011, banned texting on electronic devices by drivers operating
motor vehicles containing hazardous materials; also adopted FMCSA Cell
Phone Rule
Federal Railroad Administration (FRA): Rail Employees
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Banned rail employees from using cell phones or other electronic devices on job
-
September 2008 Metrolink crash in Chatsworth, California that killed 25 people
Federal Aviation Administration: Pilots
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FAA advised air carriers to create and enforce policies that limit distractions in
cockpit and keep pilots focused on transporting passengers safely
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Northwest flight situation wherein crew was distracted by laptop and overshot
destination by 150 miles
29
OSHA
•
Occupational Safety and Health Administration
(OSHA)
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“Dear Employer” Letter posted on OSHA’s website
“Companies are in violation of the Occupational Safety and Health
Act if, by policy or practice, they require texting while driving, or
create incentives that encourage or condone it, or they structure
work so that texting is a practical necessity for workers to carry out
their job.” [Appendix A]
-
According to OSHA’s website:
“Employers have a responsibility and legal obligation to have a
clear, unequivocal, and enforced policy against texting while
driving.”
-
OSHA is prepared to issue citations for violations
30
EMPLOYER LIABILITY
31
Employer Liability
•
Under Fair Labor Standards Act (FLSA), commuting
between home and workplace traditionally is considered
personal time, not working hours
•
Pervasiveness of cell phones threatens to “change the
game”
•
Employee’s personal commuting time is starting to be
viewed as “work” time for purposes of employer vicarious
liability for harm caused while engaged in distracted
driving
32
Employer Liability
•
Chatman-Wilson v. Cabral, No. 10-61510-2 (Tex.
Nueces County Ct. at Law No. 2 May 4, 2012)
-
Coco-Cola hit with $21 million judgment after one of its drivers
involved in accident while talking on cell phone
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Part of evidence was that Coke’s cell phone policy was vague
and ambiguous
-
After trial, the company released statement saying that its cell
phone usage policy was “completely consistent with, and in fact,
exceeds the requirements of Texas law”
33
Employer Liability - Examples
•
City paid $1.45 million settlement to permanently debilitated crash
victim after city worker, who was reaching for cell phone while
driving, rear-ended victim
•
Paper company paid $5.2 million to settle case in which its employee
was sued for rear ending another car while using company-supplied
cell phone, resulting in amputation of arm of widowed mother of four
•
County held liable and paid $4 million after off-duty police officer
driving police cruiser was texting moments before crash and killed
college student
•
Employer settled lawsuit for $500,000 after employee involved in
fatal crash while making cold calls on way to non-business related
event on Saturday evening; company did not own phone or vehicle,
but plaintiff alleged company lacked policy regulating employee cell
phone usage
34
Employer Liability - Examples
•
Government employer ordered to pay $1.5 million after school
teacher struck pedestrian; driver had just completed cell phone
call when accident occurred
•
Construction company paid $4.75 million to settle case after
employee severely injured passenger in crash; employee, while
commuting to work, reached over to retrieve mounted handsfree cell phone provided by employer, perhaps to retrieve work
related call
•
Law firm settled for undisclosed amount and attorney ordered
to pay $2 million (plus criminal conviction) after killing 15 year
old in hit and run while talking on cell phone. Evidence
showed attorney billed clients while talking on cell phone
35
Vicarious Liability
•
Courts look to doctrine of respondeat superior to determine
whether employer is vicariously liable
•
Plaintiff generally must establish that employee was conducting
employer’s business and acting within scope of employment
•
Key inquiries:
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Whose vehicle was employee driving and whose technology was it?
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Was distraction work-related? Were there other distractions (i.e. non-workrelated)?
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Do work-related driving distractions occur with frequency?
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Does employer have policy prohibiting distracted driving?
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Was employer aware of work-related communications with employee while
driving?
36
Vicarious Liability
•
An employer is responsible for a tort committed by its
employee acting within the scope of his/her employment under
the doctrine of respondeat superior. RESTATEMENT (THIRD) OF
AGENCY §§ 2.04, 7.07.
•
Conduct of employee is “within scope of employment” if
employee is performing work assigned by the employer or
engaging in a course of conduct subject to the employer’s
control.
•
Conduct of employee is not “within scope of employment”
“when it occurs within an independent course of conduct not
intended by the employee to serve any purpose of the
employer.” RESTATEMENT (THIRD) OF AGENCY § 7.07.
37
Vicarious Liability
•
Hunter v. Modern Continental Const. Co., 652 S.E.2d
583, 593 (Ga. App. 2007)
-
Truck driver en route to work struck plaintiff
-
Factual question existed as to whether truck driver was on workrelated cell call, or was distracted by incoming work call
-
Cell phone records showed driver on call with co-worker 1
minute before accident
-
Held: Employer’s vicarious liability is question for jury;
employer’s motion for summary judgment denied
38
Vicarious Liability
•
Clo White Co. v. Lattimore, 590 S.E.2d 381 (Ga. App. 2003)
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Employee en route to work lost control of vehicle and collided with
plaintiff
-
Employee denied he was on phone when accident occurred, but cell
records showed he had made 3 calls, including just before and just after
accident
-
Employee admitted he had used cell phone to contact employer while
driving on other occasions
-
Employer had issued pager to employee, which he answered via cell
phone outside working hours
-
Held: If jury could find that employee was on phone with employer at
time of accident, vicarious liability attaches
39
Vicarious Liability
• Hoskins v. King, 676 F. Supp. 2d 441 (D.S.C. 2009)
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Field service tech driving employer-leased car struck and
killed cyclist
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When accident occurred, employee was on vacation -talking on employer-issued cell phone to friend just before
accident, and attending to dogs in front seat and/or changing
radio station
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Held: connection to work too attenuated to give rise to
employer duty of care; summary judgment granted for
employer
40
Vicarious Liability
• O’Toole v. Carr, 786 A.2d 121, 126 (N.J. Super.
2001)
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Partner in law firm struck plaintiff while en route to municipal
court (part-time work as judge), while driving vehicle leased by
partner and reimbursed through firm disbursements
-
At time of accident, partner was not on cell phone, but had
concluded several firm-related calls shortly before
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It was understood that partner would be conducting firm business
while commuting to court
-
Held: Court felt “constrained” to rule that law firm is not liable;
partner not acting within scope of employment at time of
accident
41
Vicarious Liability
• Ellender v. Neff Rental, Inc., 965 So.2d 898 (C.A.
La. 2007)
-
Regional sales manager rear-ended plaintiff while on business
call and searching for pricing information
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Employer provided manager with company cell phone and
$600/month stipend for use of personal vehicle on business
-
Manager regularly conducted business on cell while driving;
employer never prohibited him from doing so and had no policy
-
Held: Employer is vicariously liable because employee was
acting within scope of employment at time of accident
42
Plaintiffs’ Bar
•
Plaintiffs’ lawyers specialize in distracted driving lawsuits
•
One Philadelphia firm’s website:
Car Accidents Caused by Cell Phone
We have all had the experience of someone on the freeway using a cell phone. They're the
one driving at a steady, though slower pace, not realizing that there is traffic all around
them. The ones on the road who take their turn out of order at the stop sign. The ones
pulling out in front of us because they are more concerned with their call than a crash.
It's infuriating and, worse, it is happening too often.
If you have been injured due to distracted driving, we can help. As Philadelphia care
accident lawyers, we know the ins and outs of this new legislation and will build a strong
case against the person who hit you. No one deserves to be hurt because of someone
else's negligence — in these cases, negligence that could have been avoided in the first
place.
Contact Our Text Messaging Accident Attorneys
43
Insurance Companies
•
Insurance companies and brokers are focused on distracted
driving as major claims escalator for employers
•
They report that plaintiffs’ attorneys now routinely seek
employee cell phone records in personal injury lawsuits
•
Some insurance companies are evaluating whether insured
has adopted “best practices” for distracted driving as part
of underwriting assessment
44
BEST PRACTICES
45
Best Practices
•
Distracted Driving Policy
-
•
Consider individually signed acknowledgements for employees who drive
regularly
Include violations of distracted driving policy in lists of Work Rules
Training
-
Train employees on policy prohibitions
Train supervisors and managers about not engaging employees in work while
driving
•
Policy Enforcement
•
Talk to insurance carrier/broker about expectations
•
Review contracts with agencies providing drivers for appropriate limitations
and indemnification language
46
Policy Development
•
NSC survey (2009) showed that 58% of employers have
policies, with approximately 25% reporting they prohibit
employees from using hands-free or hand-held phones
•
New York Times (2012) reported that many Fortune 500
companies are banning cell phone use by employees while
driving, with little or no adverse impact on productivity
•
NHTSA published sample policy [Appendix B]. OSHA refers
employers to NHTSA’s sample policy
47
Policy Development
•
NHTSA Sample Policy
-
Prohibits use of hand-held cell phones while operating vehicle,
including while vehicle is stopped at traffic light
-
Prohibited activities include:
•
Answering or making phone calls,
•
Engaging in phone conversations,
•
Reading or responding to emails, instant messages, or text
messages
-
Employees advised to pull over to safe location to make calls
-
Employees must turn off phones or put them on silent/vibrate before
starting car
-
Modify voice mail greetings to indicate unavailability while driving
48
Policy Development
•
Additional Policy Considerations
-
Zero tolerance policy statement on distracted driving of all kinds
-
Scope of policy applies to: employer vehicles; employer devices;
employer time ... but also to personal vehicles, devices, and time to
extent employee is engaged in any form of business-related pursuit
-
Offer specific examples of distracting conduct that distracts employee
from full attention on driving visual, auditory, manual, and cognitive
distractions (e.g., cell phones, emails, texting, Internet, social media,
GPS, eating and drinking, reading, personal grooming, etc.)
-
Consider expanding prohibition on hand-held to hands-free phones as
well
-
State affirmatively that employer does not expect employees to engage
in any form of business-related pursuit while operating vehicles
-
How will you engage the executive team to follow policy?
49
Questions?
Brian Pedrow
[email protected]
215.864.8108
Babe Blattner-Thompson
[email protected]
801.517.6844
Appendix A: OSHA Dear Employer Letter
David Michaels, Assistant Secretary for
Occupational Safety and Health, U.S.
Department of Labor
Dear Employer Letter re: Drive Safely
Work Week
Available from OHSA Website at
http://www.osha.gov/distracted-driving/index.html
51
Appendix A: OSHA Dear Employer Letter
U.S. Department of Labor
Assistant Secretary for
Occupational Safety and Health
Washington, D.C. 20210
October 4, 2010
Dear Employer:
Distracted driving has become an epidemic in the United States, and its often fatal
consequences are a threat to your workers, your business and the public.
Because millions of workers’ jobs require them to spend part or all of their work day driving ―
visiting clients and customers, making site visits, or delivering goods and services ― the
Departments of Labor (DOL) and Transportation (DOT) are joining forces in a campaign to stop
distracted driving and save lives.
Year after year, the leading cause of worker fatalities is motor vehicle crashes. There’s no
question that new communications technologies are helping business work smarter and faster.
But getting work done faster does not justify the dramatically increased risk of injury and death
that comes with texting while driving.
The human toll is tragic. DOT reports that in 2009, more than 5,400 people died in crashes
linked to distraction and thousands more were injured. “Texting while driving” has become
such a prominent hazard that 30 states now ban text messaging for all drivers.
OSHA is partnering with others across government, industry and the public to bring together
important information and tools to attack texting while driving and other distracted driver
hazards. We invite you to learn more about combating this problem at www.osha.gov and at
DOT’s distracted driving website, www.distraction.gov.
Most employers want to do the right thing and protect their workers, and some have already
taken action to prohibit texting while driving. It 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. Companies are in
violation of the Occupational Safety and Health Act if, by policy or practice, they require texting
while driving, or create incentives that encourage or condone it, or they structure work so that
texting is a practical necessity for workers to carry out their job.
To combat the threat of distracted driving, we are prepared to act quickly. When OSHA receives
a credible complaint that an employer requires texting while driving or who organizes work so
that texting is a practical necessity, we will investigate and where necessary issue citations and
penalties to end this practice.
I invite you to join us in observing "Drive Safely Work Week," October 4-8. During this week and
throughout the year, let’s work together to prevent workers from being injured and killed on
the road.
David Michaels, PhD, MPH
52
Appendix B: NHTSA Sample Policy
NATIONAL HIGHWAY TRANSPORTATION
SAFETY ADMINISTRATION
Sample Bill to Prohibit Texting While
Driving
Available from NHTSA Website at
http://www.nhtsa.gov/PR/DOT-31-10
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Appendix B: NHTSA Sample Policy
SAMPLE EMPLOYER POLICY ON
DISTRACTED DRIVING
[Company Name] Distracted Driving Policy
Please read the Distracted Driving Policy, sign and return to your supervisor.
In order to increase employee safety and eliminate unnecessary risks behind the wheel, [Company
Name] has enacted a Distracted Driving Policy, effective [Date]. We are committed to ending the
epidemic of distracted driving, and have created the following rules, which apply to any employee
operating a company vehicle or using a company-issued cell phone while operating a personal
vehicle:
•
Company employees may not use a hand-held cell phone while operating a vehicle –
whether the vehicle is in motion or stopped at a traffic light. This includes, but is not limited
to, answering or making phone calls, engaging in phone conversations, and reading or
responding to emails, instant messages, and text messages.
•
If company employees need to use their phones, they must pull over safely to the side of the
road or another safe location.
•
Additionally, company employees are required to:
o Turn cell phones off or put them on silent or vibrate before starting the car.
o Consider modifying voice mail greetings to indicate that you are unavailable to
answer calls or return messages while driving.
o Inform clients, associates and business partners of this policy as an explanation of
why calls may not be returned immediately.
•
[Company consequences for failing to follow policy]
I acknowledge that I have received a written copy of the Distracted Driving Policy, that I fully
understand the terms of this policy, that I agree to abide by these terms, and that I am willing to
accept the consequences of failing to follow the policy.
_________________________________________
Employee Signature
______________________
Date
_________________________________________
Employee Name (printed)
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