Although there is no specific standard generally covering distracted driving, OSHA has made clear that the general duty clause may apply. Indeed, OSHA has stated that more workers are killed each year in motor vehicle crashes than any other cause. However, despite this finding, many businesses do not have formal distracted driving policies.

Recognizing this issue, in 2006, OSHA, the National Highway Traffic Safety Administration (NHTSA) and the Network of Employers for Traffic Safety (NETS) published a 32-page document called, “Guidelines for Employers to Reduce Motor Vehicle Crashes” (“Guidelines”) which offered information to help employers design an effective driver safety program. The guidelines feature a ten-step process outlining what an employer can do to improve traffic safety performance and minimize the risk of motor vehicle crashes. The Guidelines discuss many sources of distracted driving including alcohol and drug-impaired driving, fatigued driving, and aggressive driving. Not surprisingly, OSHA has also published additional information highlighting the danger of texting and driving.

https://www.osha.gov/Publications/3416distracted-driving-flyer.pdf

OSHA opines that employers should prohibit texting while driving, establish work procedures and rules that do not make it necessary for employees to text while driving in order to carry out their duties, incorporate safe communications practices into employee orientation and training and eliminate financial and other incentive systems that encourage workers to text while driving.

The Guidelines and other related materials provide useful information to employers to combat distracted driving. However, to better protect employees from the hazards of distracted driving, a policy may want to cover more than just texting or emailing. For example, an employer should consider whether it wants to prohibit the use of both handheld and hands-free devices while operating any vehicle for business purpose (whether owned by the business or not). As with any work rule, employers should also provide applicable training on the policy during orientation and refresher training, when necessary and take required disciplinary action to enforce the policy, when appropriate.

Today’s world also presents additional challenges employers should consider when adopting a distracted driving policy that did not exist when the Guidelines were published or at least not to the extent they do now. Now, most vehicles permit syncing of a phone or other electronic device via Wi-Fi so that an individual can dial and/or read/receive texts/emails by voice and thus be hands-free while doing so. Although such hands-free use of a cell phone may be legally permissible, the question remains whether it is a practice that an employer should condone. The reality is that such use of a phone still constitutes distracted driving. This issue may be of greater concern for less experienced drivers. In fact, OSHA has confirmed that people under the age of 20 are involved in more fatal crashes due to distractions than any other age group. Although it seems unlikely that OSHA would cite an employer, subject to aggravating facts, for permitting hands-free use of a cell phone while driving, the ultimate concern is minimizing motor vehicle accidents. Prudence would suggest the businesses should ensure that work, e.g., participating on a conference call need not be done while driving even if hands-free.

In addition, as more “autonomous” cars enter the marketplace, employees may be more tempted to engage in distracted driving habits such as texting, emailing or taking conference calls from vehicles equipped with such features. OSHA has not yet issued any guidance on how employers should address hazards posed by autonomous cars but businesses might consider proactively addressing this issue in their distracted driving policies.

In September 2017, the U.S. Department of Transportation and the NHTSA released guidance for Automated Driving Systems, which provides some information related to certain safety issues posed by autonomous vehicles. It can be accessed at:

https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf

There is little doubt that as technology continues to evolve with both electronic devices and vehicles, employers may need to revisit their distracted driving policies occasionally or at least until the day when humans will no longer need to actually drive.