Employer Liability for Distracted Workers and Drivers is Plentiful

Last week I published one of my most popular blog posts: Remote Text Sender Now Liable for Distracted Driver’s Crash. Most people who read that post probably thought about employment laws – since that seems to be the thought process of most of my readers. But distracted driving also implicates other areas of law, too. 

To date, more than 40 states, the District of Columbia, and Puerto Rico have passed laws banning all drivers from texting. Twelve states, the District of Columbia, and Puerto Rico also ban hand-held cell phone use for all drivers, while 37 states have banned all cell phone use for novice drivers. And nearly all states – 48 to be exact – now include at least some form of distracted driving as a causal category on police accident investigation forms.

OSHA has threatened to cite employers for violating the “general duties clause” of the OSH Act for workplace related hazards arising out of distracted workers. After all, distractions related to texting are not limited to drivers on public roads. Consider the forklift driver who reads an email message while moving and stacking 5,000 pound pallets around your warehouse. Or the construction or utility worker who takes a call while positioned 40 feet up on a ladder or utility pole. Or the person in the booth who is supposed to be watching the pressure gauge or computer readouts but is busy ordering a pizza online. Did you consider the nurse who is having an ongoing text conversation while simultaneously charting or transcribing a doctor’s prescription and treatment orders into the computer?

Think of how workers at your company could injure themselves, co-workers, or the public because their attention was more focused on their phone than the task at hand. These types of day-to-day risks don’t receive the same level of media hype as distracted driving does, but they are more prevalent and could be just as dangerous.

An example of how many laws are involved in distracted driving that I recently read about involves a floral delivery driver. Assume the driver was distracted enough that he didn’t see the motorcyclist with enough time to stop and the two vehicles collided. The delivery driver is injured.

  • The florist immediately faces a workers compensation claim, loses a worker for a period of time, has to record a lost work time incident on the OSHA 300 logs, and has a wrecked van. The florist also suffers a dip in revenues and profit because deliveries are curtailed until both the driver and the van can be replaced.
  • The police investigate and determine that the accident occurred because the delivery driver was distracted by his attempt to use the phone to find the delivery location. The results of that investigation are detailed on the police report and distracted driving and cell phone use violations are issued to the driver.
  • OSHA learns of the incident through a police referral, conducts its own investigation, and finds that the florist knew – or maybe even implicitly encouraged – its drivers to use cell phones to effectuate deliveries, but provided no training or instructions on cell phone safety or the dangers while driving. OSHA issues a willful violation under the general-duty clause with a $70,000 proposed penalty.
  • In the meantime, the motorcyclist dies from the severity of his injures. An aggressive district attorney wanting to make a point about distracted driving and joining the growing trend of criminal enforcement elects to charge the florist’s driver with criminally negligent homicide and also charges the florist as an accessory.
  • The motorcyclist’s family hires a lawyer and sues the florist and the driver. The florist, however, has limited insurance that may not cover the eventual civil judgment and now the business and its assets are at risk.
  • Due to the circumstances, the florist’s liability and worker compensation insurers also either substantially raise premiums or decline to renew.

While this may seem extreme to some, it really isn’t. These facts could reasonably happen. Employers must recognize how far and wide the exposure can extend and that every workplace that fails to ban cell phone use and texting while working likely faces some level of risk.

At a minimum, employers should implement a formal distracted driving / distracted working policy prohibiting cell phone use, texting, messaging, and other distracting behaviors while working. Where the use of such technology is necessary, the employer should develop and train employees on acceptable and appropriate protocol for how and when the employee may utilize these technologies in a safe manner.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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