New NTSB Recommendations and FMCSA Regulations Warrant Reconsideration of Employer Cell Phone Policies

On December 13, 2011, the National Transportation Safety Board (NTSB) recommended that states ban nonemergency use of portable electronic devices (PEDs) by drivers of any motor vehicle.       

This NTSB recommendation, as well as the new Federal Motor Carrier Safety Administration (FMCSA) regulation banning (effective January 3) the use of hand-held mobile telephones by commercial motor vehicle drivers, warrant that all employers consider strengthening their cell phone policies.      

NTSB Recommendations

At its December 13 meeting, the NTSB recommended the District of Columbia and every state prohibit nonemergency use of PEDs ("other than those designed to support the driving task") for all drivers.  The NTSB recommendation stems from its investigation of a 2010 multi-vehicle accident caused in part by driver distraction arising from text messaging. 

Comments from NTSB Chairman Deborah A.P. Hersman stressed the exponential growth in the use of PEDs and the potential harm of distracted driving.  According to Hersman, "more than 3,000 people lost their lives last year in distraction-related accidents."  Hersman added, "No call, no text, no update, is worth a human life." 

The NTSB's final report and safety recommendations have not yet been released.

Many states and localities already restrict cell phone use or text messaging by drivers.  However, these laws vary.

For example, some state statutes are limited to certain uses (e.g., text messaging) and/or certain drivers (e.g., cell phone use by novice drivers or school bus drivers); some states prohibit the use of hand-held cell phones by all drivers; and some states only deter cell phone usage through civil tort liability.

In contrast, the NTSB's recommended ban would apply to all drivers and, according to the New York Times report of the December 13 NTSB proceeding, would encompass hands-free PEDs as well.

FMCSA Regulations of CMV Drivers

New FMCSA regulations prohibit use of hand-held "mobile telephones"* by drivers of commercial motor vehicles (CMVs), except "when necessary to communicate with law enforcement officials or other emergency services."  These new regulations become effective January 3, 2012.**     

In addition to banning drivers from holding a mobile telephone to conduct a voice communication, the regulations also prohibit drivers from reaching for a mobile telephone in an unsafe manner and from pressing more than a single button to initiate, answer, or terminate a call. 

Existing FMCSA regulations already ban texting with an electronic device while driving.  Comments accompanying the new regulations governing the "use" of hand-held mobile phones state that, although the "FMCSA recognizes that mobile telephones often have multi-functional capability" and the new regulations do not prohibit using mobile telephones for uses other than the certain uses proscribed by the rules, "[o]f course, other types of activities using a mobile telephone might be covered by other rules, such as those addressing texting while driving a CMV."  The new regulations also revise the definition of "texting."

In addition to prohibiting the use of hand-held mobile phones by drivers of CMVs, the new rules prohibit employers/motor carriers from allowing or requiring their CMV drivers to use hand-held mobile telephones while driving.

Although recognizing that "there will be cases when a CMV driver uses a mobile telephone in violation of the employer's policy," the FMCSA rejected suggestions that the word "knowingly" be added to the restriction prohibiting motor carriers/employers from allowing or requiring their drivers to violate the regulation.

Comments accompanying the final rule state that "a motor carrier should put in place or have company policies or practices that make it clear that a carrier does not allow or require hand-held mobile phone use while driving.  A motor carrier is responsible for the actions of its drivers."    

Violations of the regulations may result in civil penalties and disqualification sanctions, which include civil penalties imposed on employers who fail to require their drivers to comply with the regulations.

In addition, drivers who hold a commercial driver's license may be subject to disqualification if they violate state or local laws restricting the use of hand-held mobile telephones while driving CMVs.

OSHA Stance on Cell Phone Use

The federal Occupational Safety and Health Administration (OSHA) has not yet issued safety standards pertaining to cell phone use in the workplace.

However, in October 2010, OSHA asserted that employers who fail to eliminate incentives that encourage workers to text while driving or who "organize work so that [texting] is a practical necessity" violate the Occupational Safety and Health Act's general duty clause, which generally requires each employer to provide its employees with a workplace free from serious recognized hazards.     

Employer Cell Phone Policies

While the new FMCSA regulations do not apply to all drivers, even employers whose drivers are not covered by these regulations should consider strengthening their cell phone use policies in light of the NTSB's recent recommendations pertaining to all drivers, and growing safety and liability concerns. 

• Employer policies governing employee cell phone use should make clear that any employee operating any motor vehicle while working or in a company vehicle must always follow governing state, federal and local laws regarding the use of cell phones and other PEDs (regardless of whether the PED was issued by the company or whether the employee is operating a company vehicle). 
• In addition, employers should consider strengthening their policies to prohibit any use of any cell phone (handheld or not) or other PED while the employee (a) is driving (except in the event of an emergency) while on the job or in a company vehicle, or (b) is operating other equipment or machinery (such as forklifts, other powered industrial trucks, and construction machinery).

Conclusion

The increasing prevalence of PEDs and the attendant growing safety and liability concerns warrant that all employers, even those to whom the new FMCSA regulations do not apply, take a new look at their cell phone use policies and consider strengthening them to specifically prohibit the use of any cell phone or other PED while driving.  

*The regulations define "mobile telephone" as "a mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the Federal Communications Commission, 47 CFR 20.3."  "Mobile telephone" does not include "two-way or Citizens Band Radio services."