On September 21, 2010, the Federal Motor Carrier Safety Administration ("FMCSA"), an agency of the U.S. Department of Transportation, announced a final rule banning commercial vehicle operators from texting messages while driving. An earlier post on this site described the notice of rulemaking. At the September 21st "National Distracted Driving Summit," FMCSA announced that the final rule will be published "soon" and will take effect 30 days after publication.

It is anticipated the final rule will track closely with the rule as originally proposed and will ban "texting," defined broadly to include generating and reading any sort of text message from an electronic device. The ban will not include using a cell phone, including to read, select, or enter a telephone number. The ban will apply anytime the driver is operating a commercial motor vehicle, including while the vehicle is temporarily stopped because of traffic, traffic lights, or for other momentary delays. The ban will not apply when the driver has moved the vehicle to the side of the road or parked safely. Drivers may be fined up to $2,750 and their employers up to $11,000 for violations. Drivers guilty of multiple violations will have their commercial licenses suspended.

In the same summit meeting, Secretary of Labor Hilda Solis announced that OSHA will join DOT in a concerted effort to address distracted driving in the workplace. Secretary Solis announced a "multi-pronged initiative" for OSHA that includes an education campaign for employers, an open letter to employers on OSHA's web site during "Drive Safely Workweek," model employer policies, and the issuance of citations and penalties if an employer requires texting while driving.

OSHA's enforcement authority reaches all private sector employers, not just commercial vehicle operators. OSHA has not developed a specific OSHA standard regarding texting while driving. But, the Secretary's remarks make clear that OSHA will consider issuing citations, at least where employers are actively encouraging or requiring texting while driving, under its "general duty clause." OSHA issues general duty clause citations where OSHA feels there is a hazard well recognized in an industry and the employer fails to address the hazard.