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Employment Law

The official Frantz, McConnell, and Seymour, LLP blog.

Employers May Face OSHA Fines For Employee Texting While Driving

We all know that the Occupational Health and Safety Administration (OSHA) issues and enforces workplace safety and health standards.

We expect to see OSHA involved in setting and enforcing safety standards in industrial and construction settings where workplace accidents unfortunately are more prevalent. While OSHA is certainly active in heavily industrialized work settings, the Occupational Safety and Health Act of 1970 ("the Act") pertains to all employment settings and requires that all employers provide their employees with a safe workplace free from known dangers. Even if there is no specific OSHA standard applicable to a particular employment practice, the Act contains a "general duty" clause which provides that all employers have a general duty to provide a safe workplace.

OSHA often relies upon this general duty provision when setting new enforcement priorities to address what it regards as evolving workplace safety threats. One of OSHA's latest initiatives is the "Distracted Driving Initiative" which focuses on employee texting while driving in the course of employment duties. More specifically, OSHA intends to investigate and if necessary, issue citations to any employer that "requires texting while driving or who organizes work so that texting is a practical necessity, ..."

As this language indicates, OSHA's enforcement focus will be on employers that actually require or encourage texting while driving. One way to convince an OSHA investigator that an employer encourages texting while driving is to knowingly tolerate the practice and do nothing to discourage it. To avoid that result, OSHA "encourages" employers to promulgate policies or work rules which prohibit texting while operating a moving motor vehicle while on the job. Having a meaningful workplace policy against texting while driving may be the difference between receiving an OSHA citation and its accompanying penalties/ attorney fees and a determination of no violation.

If you are an employer or human resources manager, the beginning of a new year is an excellent time to evaluate current work policies or handbook provisions and identify needed revisions and updates. A rule addressing distracted driving while on the job should be considered for inclusion, if you do not already have one.

Tennessee employers should keep in mind that Tennessee Code Ann. 55-8-199 also prohibits operators of moving motor vehicles from transmitting or reading texts, emails or other written electronic messages. While this statute does not impose any legal obligations on employers, an employee who causes an accident resulting in personal injury or property damage to a third party while violating this statute may subject his employer to liability, even if the employer has a work rule prohibiting that conduct. For this reason, employers are well advised not only to implement policies prohibiting texting while driving, but to also regularly discuss the prohibition in safety training and to have a real disciplinary consequence for violations.

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