Employers should be aware that soon it will be illegal for a person to use a handheld device to write, send, or read a text-based communication while operating a motor vehicle on any public road in Ohio. On June 1, 2012, Ohio became the 39th state to prohibit texting while driving. The new law (House Bill 99) goes into effect on September 1, 2012, and makes texting while driving (or sitting idle at a traffic light, stop sign, or in traffic) a secondary offense for adult drivers and a primary offense for drivers under the age of 18. This means that adult drivers can be ticketed for writing, sending, or reading a text message, but only if they are first pulled over for a primary traffic offense, such as speeding, running a red light or failing to stop at a stop sign. On the other hand, drivers under the age of 18 are prohibited from using, in any manner, electronic wireless communications devices while operating a motor vehicle. This includes talking on a cellphone with a hands-free device. Once the new law goes into effect, there will be a six-month grace period during which officers cannot issue tickets or citations for violations, but may issue written warnings to drivers explaining that violations that occur after the grace period will be considered a minor misdemeanor and carry a fine of up to $150. Although the “no texting while driving” law may be a good first step to reducing distracted driving, there are many built-in exceptions that lessen its effect and may make it difficult to enforce. In addition to House Bill 99, many cities and municipalities throughout Ohio have also enacted local ordinances that either completely ban drivers from using electronic communication devices or severely limit the use of such devices while operating a motor vehicle.
So, how does this affect you as an employer? In previous posts, we discussed the legal implications that employers may face for cell-phone related accidents caused by their employees and the need for employers to update or implement policies regulating employee use of handheld devices while operating a vehicle for work purposes. Under the Occupational Safety and Health Act of 1970 (“OSH Act”), employers must provide a workplace free of serious recognized hazards. The leading cause of worker fatalities year after year is motor vehicle accidents and according to the Occupational Safety and Health Administration (OSHA), it is well known that texting while driving greatly increases the risk of such accidents and the chance of being seriously injured or killed in a crash. Thus, OSHA has declared under its Distracted Driving Initiative that “[e]mployers who require their employees to text while driving—or who organize work so that doing so is a practical necessity even if not a formal requirement – violate the OSH Act” and the administration will issue citations and penalties, where necessary, to end this practice. In addition, under the theory of respondeat superior, an employer may be held legally responsible for the negligent actions of an employee acting within the scope of his or her employment. Because the violation of any specific safety statute, such as a traffic law, is negligence per se in Ohio, employers who require or encourage employees to text while driving are more likely to be found liable for any accident that results from an employee’s violation of House Bill 99.
Thus, with the enactment of House Bill 99 in Ohio and OSHA’s Distracted Driving Initiative, employers should carefully review their existing workplace rules for compliance with federal, state and local laws and eliminate any policy or practice that requires or encourages workers to text while driving. Employers who have no policy should strongly consider adopting a policy and should promptly educate their employees regarding House Bill 99’s restrictions, especially as it relates to employees under the age of 18.