– By Gary Auman –
Recent communications from the Occupational Safety and Health Administration will have an effect on workplace practices regarding cell phone use and injury-reporting requirements.
Employees and Distracted Driving
How often do you talk on your cell phone while driving? Do you have a hands-free phone? Do you believe it is safer to talk hands free than not hands free? Do you text while you drive? Do you text only when you are stopped at a traffic light or stop sign? Do you talk on your cell phone on the job site? In light of some recent communications from the Occupational Health and Safety Administration, you may want to rethink what you do and what your company permits employees to do while they are working.
In the June 2014 issue of Frame Building News, I discussed the broadened use of the general-duty clause in OSHA of 1970 as it applies to the construction industry, and in the June 2013 issue I discussed the clause in the context of heat stress. But what does the general-duty clause have to do with texting while driving?
Two words link the general-duty clause with texting while driving: recognized hazard. Many employers worry so much about compliance with specific safety standards that they sometimes lose sight of the fact that they are responsible for providing their employees a place of employment free of all hazards. And if your employees are exposed to an obvious hazard in the workplace, you will have a hard time convincing OSHA that you did not consider it a hazard. This is especially true in the case of something that has been in the forefront of the news as much as texting while driving.
Recently OSHA has stated that it will consider an employer to be exposing its employees to a recognized hazard concerning texting while driving if the employer does any of the following:
- requires workers to text while driving
- creates incentives that encourage or condone texting while driving
- structures work so that texting while driving is a practical necessity.
You may be saying to yourself, “I don’t do any of those,” and that may be true, but businesspeople face many pressures to do so. How many sales and marketing seminars have you attended that have stressed the need to be responsive to customers as a way to help expand your business? You want happy customers, and that requires returning telephone calls, e-mails, and text messages promptly. Those return messages have to be timely, and we are frequently told that the more timely our response, the better. Many of us will interrupt what we are doing to respond immediately to an e-mail or text message from an important customer or client. So while you don’t require your employees to text while driving, do you provide other reasons for them to do so? How much do you know about how your managers incentivize those who work for them to work beyond their potential, using either positive or negative incentives? Are there days when the only way to get all the work done is to communicate while traveling? Unless you can answer these questions completely and correctly, you are at risk. And even if you believe that you can do so, what would your employees say to an OSHA compliance officer during a confidential interview?
OSHA expects employers to have a policy on distracted driving as part of their safety program and to train employees on this topic. Your policy should have five components:
- Texting while driving is prohibited.
- Work procedures and rules are established that make it unnecessary for workers to text while driving in order to carry out their duties.
- Clear procedures (covering times and places) for drivers’ safe use of texting and other technologies for communicating with managers, customers, and others are in place.
- Sage communications practices are incorporated into workers’ orientation and training.
- Financial and other incentive systems that encourage workers to text while driving have been eliminated.
OSHA has announced that it is prepared to act quickly when it receives a credible complaint that employees are required—either directly or indirectly—to text while driving. If an OSHA investigation bears out the complaint, a citation will be issued, and the citation will most likely be serious. In addition, compliance officers will likely review contractors’ safety programs to determine whether the program contains material and training on distracted driving. The absence of such material may well result in serious citations.
A safety program on safe driving is not a very difficult program to institute. But you will need to do more than simply add a page or two to your safety manual. Be sure to do the training, and be sure to enforce the rules you establish. Finally, this program should not stop at texting while driving. Your program on distracted driving should cover anything an employee might feel inclined to do while driving a car as part of carrying out company business.
The use of hand-held cell phones is one area of concern. Many of us have observed a person making a turn with only one hand on the steering wheel while concentrating on a cell phone conversation. This is clearly a recognized hazard, and OSHA is very likely to consider hand-held cell phone usage while driving to be a recognized hazard for all employees. But hands-free cell phone usage is also problematic. All of us know that when we are engaged in an intense phone conversation, we may be paying more attention to the call than to our surroundings. When this happens, we are creating a hazardous situation.
Concern for your employees’ safety means that you, the employer, may have to step in to prevent unsafe behavior. Cell phones are a distraction, and their use should not be permitted wherever it entails the possibility of exposure to a hazard for any employee. Recently, a client had an employee who was so engrossed in a cell phone conversation while walking across a roof that he walked onto a skylight and fell through it 35 feet to a concrete floor. He was in a coma for three days, and two months later, he still has not returned to work. He was so engrossed in his cell phone conversation that he did not “see” his surroundings. This example illustrates the reason that OSHA does not permit a safety monitor on a low-sloped roofing job to use a cell phone while acting in the capacity of safety monitor.
Because this issue is covered by the general-duty clause, your cell phone policy can be as relaxed or as restrictive as you wish, with the exception of policies on texting while driving, which I addressed above. I recommend that your policy
- prohibit texting or e-mailing while driving
- not permit any work incentives that would encourage texting or e-mailing while driving
- prohibit the use of hand-held cell phones while driving
- prohibit the use of hands-free cell phones while driving. (An exception would permit an employee to answer or place a hands-free call while driving, if the driver’s attention was not taken from the road. It would also require that any hands-free conversation be terminated immediately in bad weather or heavy traffic. I do not recommend allowing this exception, but it is as far as you should go to permit some cell phone use.)
- prohibit employees from eating, drinking or doing personal grooming while driving. (One could provide some latitude by allowing an employee to drink coffee or soda while driving, but I do not recommend allowing this exception.)
- prohibit the use of cell phones or tablets on any active work site. (I would suggest that the highest-level supervisors could be permitted to use a cell phone in case of emergencies, but that employees be permitted to use the device only in an emergency when a supervisor is not present on the job site.) In all other instances cell phone use should be allowed only off the active work site. Employees may be allowed to bring cell phones with them to the job site, but they should be allowed to use them only during breaks taken away from the active work area.
New Injury-Reporting Rule
Recently OSHA issued a notice that a new rule under 29 CFR Section 1904 would go into effect January 1, 2015. This rule establishes a new procedure for reporting catastrophic injuries, which have been redefined.
Fatalities must still be reported to OSHA within eight hours of their occurrence or within eight hours of the employer’s becoming aware of the fatality. The eight-hour clock begins to run when the employer becomes aware of the fatality, so long as the reportable event occurs within 30 days of the accident itself. So if an employee suffers an injury on November 1 and dies as a result of that accident by November 30, the employer has eight hours from the time he or she finds out about it to report the fatality to OSHA.
The big change involves the reporting of hospitalizations. Employers must now report the hospitalization of even one employee for treatment within 24 hours of becoming aware of the hospitalization. The key word here is treatment; hospitalizations for observation do not need to be reported. In addition, all injuries involving amputation or the loss of an eye must be reported within 24 hours. Amputation is defined as the loss of any body part, even the tip of a finger, and the amputation of the tip of a finger must be reported even if no loss of bone is involved.
The key changes in this new reporting rule are that (1) the number that activates the requirement has dropped from three hospitalized employees to one hospitalized employee, (2) the time for reporting hospitalizations has been extended from eight hours to 24 hours, and (3) a reporting requirement now exists for injuries involving amputation or the loss of an eye.
Attention to these two areas is well worth your while. You will be protecting your employees from hazardous situations related to cell phone use and protecting your company from penalties for improper reporting of injuries. FBN
Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.