By Mark A. Lies, II and Adam R. Young
Seyfarth Synopsis: As OSHA’s enforcement relating to employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels to address this hazard.
Business today is regularly conducted through cell phones, as a necessary tool for employees to communicate and access digital information. Bring Your Own Device programs and employee cell phone use present a range of employment and labor liabilities for employers: smartphones can be a forum for employees to engaged in protected concerted activity, an opportunity for unauthorized overtime work, and a tool to access inappropriate images and harass coworkers. Yet the biggest challenge posed by cell phones is their inappropriate use.
Distracted driving is the number one cause of workplace fatalities, and cell phones are the biggest cause of distraction in the forms of text messaging, talking, and game-playing. Cell phone distractions can impugn employees’ spatial awareness, recognition of hazards, and operation of dangerous equipment. Finally, studies show that certain cell phone batteries have resulted in fires and explosions. Accordingly, employers with Bring Your Own Device programs or who provide cell phones for use at the workplace must understand and manage any risks that may be associated with the use of these devices.
Employers whose businesses require the use of cars, vans or trucks must understand that their policies and training regarding the safe operation of those vehicles–and the inclusion of a clear prohibition against texting on a hand held cell phone while driving–are of strong interest to OSHA, the law enforcement community, insurance carriers and potential civil litigants. Failure to address this hazard can result in significant employer liability.
Federal OSHA maintains a Distracted Driving Initiative, in which it targets texting as a major cause of workplace injuries. In a 2010 open letter to employers, Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) David Michaels said, “It is your responsibility and legal obligation to have a clear, unequivocal and enforced policy against texting while driving….Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs. OSHA will investigate worker complaints, and employers who violate the law will be subject to citations and penalties.” OSHA has used its General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, to issue citations and proposed penalties in these circumstances. OSHA considers “distracted driving” which can include texting (and potentially the use of cell phones for telephone calls) to be a “recognized hazard” under the General Duty Clause to employee safety. Penalties for willful violations of the Act under the General Duty Clause can be as high as $124,709.
Even with a no-texting policy, OSHA may cite employers when employees are texting while driving, where texting is a common workplace practice. OSHA indicates that “when it receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, [OSHA] will investigate and where necessary issue citations and penalties to end this practice.” Accordingly, employers need to be wary of workplace texting, and make clear that texting while driving is prohibited.
Distracted Operation of Industrial Machinery
Inappropriate use of cell phones presents safety hazards far beyond the driving of personal vehicles. At the most obvious, operators of Powered Industrial Trucks or other industrial machinery, including overhead cranes, can be distracted by cell phone use. OSHA regulations squarely forbid the use of cell phones in construction regulations pertaining to cranes and derricks (29 C.F.R. § 1926.1417(d)), but the hazard exists across any dangerous equipment. Accordingly, active operation during the use of industrial equipment should be strictly prohibited.
Distracted Employees at the Workplace
As any employer with industrial machinery knows, preventing accidents starts with making sure employees are aware of their surroundings. The inappropriate use of cell phones imperils employees’ ability to recognize and react to hazards, such as passing forklifts, which can hit pedestrian employees. Of recent concern is the use of “augmented reality” games, such as Pokémon Go, in which players view the world through cell phone screens, walk around while distracted, and search real world sites for game-related information. These games encourage cell phone use and distraction while walking around, and should be prohibited from the worksite.
Additional Liabilities for Distracted Employees
Of course, OSHA citations and associated penalties are not the only liabilities that employers must be concerned about when it comes to cell phone distractions. For example, thirteen states ban the use of handheld phones while driving for talking. 46 states and the District of Columbia ban text messaging for all drivers, and in many of the remaining states similar bans are in place at the county or city level. These laws make texting while driving illegal and also open employers to liability for accidents that result from their employees’ distracted driving and improper use of cell phones.
Employees face both individual civil and criminal liability for damages that result from accidents caused by texting while driving or engaging in other work Likewise, employers face vicarious liability for the acts of their employees under agency law for personal injury or property damage they cause during the course of employment. When an accident happens as a consequence of distracted driving or operating machinery while the employee is on company time, the employer is potentially liable. Where the employer has not affirmatively prohibited texting while driving and enforced that policy, the employer faces potential liability as a result of the accident.
Vicarious liability, as it is called, is not a new legal concept. Employers have faced liability in similar situations for decades for the acts of their employees that occur during the course of the employment relationship. Consider the claims made against pizza delivery companies whose drivers were instructed to deliver a pizza in 30 minutes or less. In the context of distracted driving, the price of vicarious liability can be significant. In Florida, a lumber wholesaler settled for over $16 million after one of its salesman hit and severely disabled an elderly woman while talking on a cell phone.
Beyond potential OSHA administrative penalties and civil and criminal liability, employers should also consider how their policies and practices can affect their insurance rates. There is no question that with an increase in accidents caused by distracted employees, the cost of worker’s compensation and other insurance coverage will rise.
Cell Phone Fires and Explosions
Modern cell phones use lithium-ion batteries, that in some cases, allegedly have caused fires and sparks while in stand-by or charging. Defective batteries allegedly have produced smoke and grounded a flight, ignited a car, and smoldered on a child’s pillow. A cell phone manufacturer has reported 35 cases of its devices’ batteries burning or exploding while charging, and has issued a recall for millions of devices. The Federal Aviation Administration has issued a warning about a particular model of personal device, telling passengers ”not to turn on or charge these devices on board aircraft and not to stow them in any checked baggage.”
Consequently, some cell phones may represent a recognized fire hazard at the workplace. As the Agency’s understanding of the hazards develops, we anticipate that may OSHA address this issue under the General Duty Clause, citing employers who fail to protect employees from the recognized hazard of cell phone battery fires. Employees who work around flammable vapors or dust may face risks from fires and explosions. It is a common practice at gasoline stations to have warnings that cell phones should not be used while fueling because of the potential for ignition of flammable gasoline vapors. Employers must manage and limit the potential fire hazards posed by recalled cell phones in the workplace.
As OSHA’s enforcement relating to inappropriate employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels. Employers may wish to look closely at their policies, procedures, and training systems to determines whether updates are appropriate to reduce potential individual civil and criminal liability of employees, as well as the vicarious liability to the employer.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the Workplace Policies and Handbooks Team.