It is no secret that employers face potential liabilities from employee use of cell phones, PDAs or other devices while engaged in business-related driving. Many employers have issued policies barring employees from texting or using cell phones while on company business or for business communications while driving. They have done so to protect employees and others from accidents and to avoid additional liability should an employee have an accident.

Now the Occupational Safety and Health Administration ("OSHA") is upping the ante. According to David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, companies will be fined (or penalized) under the Occupational Safety and Health Act ("OSH Act") for cell phone-related accidents caused by employees if OSHA determines that employer policies contributed to an accident. Describing OSHA's "Distracted Driving Initiative," Michaels stated that OSHA's new enforcement position is that it will pursue cases if it receives a credible employee complaint or otherwise can find that "an employer has set up a situation where an employee has a strong incentive or is required to use their phone, and that had resulted in an accident that has any sort of personal damage…" OSHA will pursue these cases without issuing a new rule and will rely on the OSH Act's General Duty Clause requiring employers to provide a safe workplace, free of recognized hazards.

OSHA's enforcement initiative will apply to many employers who otherwise do not regularly have OSHA concerns because of the nature of their business. The OSHA initiative is a good reminder to all employers to review their existing policies on cell phone use and texting by employees while driving on the job or in company vehicles or to issue a new, comprehensive policy. Employers should assure that employees indicate their agreement to the policy either electronically or in hard copy. These policies, and the record that an employee signed off on the policy, could be the key fact in the successful defense of an OSHA citation or a lawsuit resulting from an accident.