Personal Electronic Devices in the Workplace: Protecting Employee Safety

Personal Electronics in the Workplace: Protecting Employee Safety

As OSHA’s enforcement relating to employee cell phone and other personal electronic device 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.

by Bill Hood, Bill Hood Consulting

Business today is regularly conducted through cell phones, as a necessary tool for employees to communicate and access digital information. Employee cell phone and other personal electronic device use present a range of employment and labor liabilities for employers: smartphones can be a forum for employees to engage 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 and other personal electronic devices is inappropriate and distraction usage.

Distraction

Screenprinting involves a number of processes that require the undivided attention and good judgment of the employee. When employees are distracted, not only does production and quality suffer, but the potential for bodily harm or fatality is greatly increased.

Distraction is the number one cause of workplace fatalities, and cell phones are the biggest cause of distraction in the forms of text messaging, talking, listening to music and game-playing. Cell phones and other personal electronic device distractions can impugn employees’ spatial awareness, recognition of hazards, and operation of dangerous equipment. Finally, studies show that certain batteries have resulted in fires and explosions. Accordingly, employers who allow cell phones and other personal electronic devices in the workplace must understand and manage any risks that may be associated with the use of these devices. And, that responsibility extends to the fines that the Occupational Health and Safety Administration (OHSA) may deem permissible.

Employers whose businesses require the use of equipment and machinery must understand that their policies and training regarding the safe operation of the equipment and machinery–and the inclusion of a clear prohibition against using a cell phone and other personal electronic devices while operating equipment–are of strong interest to OSHA, insurance carriers, and potential civil litigants. Failure to address this hazard can result in significant employer liability.

Federal OSHA targets texting as a major cause of workplace injuries. It is the employer’s responsibility and legal obligation to have a clear, unequivocal and enforced policy against cell phone usage while operating equipment and machinery. Employers are also in violation of the Occupational Safety and Health Act if, by policy or practice, they require the use of cell phones and other personal electronic devices while operating equipment or machinery or create incentives that encourage or condone it, or they structure work so that the use 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 General Duty Clause

OSHA has used its General Duty Clause, Section 5 of the Occupational Safety and Health Act, to issue citations and proposed penalties in these circumstances.

SEC. 5. Duties

(a) Each employer —

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

Distracted Operation

OSHA considers “distracted operation” which can include the use of cell phones and other personal electronic devices 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 USD$124,709.

However, should an accident happen, the legal concept of “Vicarious Liability” can be employed. Employers have faced liability in similar situations for decades for the acts of their employees that occur during the course of the employment relationship. In Florida, a lumber wholesaler, who required their driver to keep in touch with the dispatcher while driving, settled for over USD$16 million after one of its salesmen hit and severely disabled an elderly woman while talking on a cell phone.

Even with a “no use policy” of cell phones and other personal electronic devices, OSHA may cite employers, where such usage is a common workplace practice. OSHA indicates that “when it receives a credible complaint that an employer does not enforce the “no use policy” or who organizes work so that usage of cell phones and other personal electronic devices 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 cell phone and other personal electronic device usage and make clear that especially the use while driving is prohibited.

Distracted Operation of Industrial Machinery

Inappropriate use of cell phones presents safety hazards. At the most obvious, operators of industrial machinery can be distracted by cell phones and other personal electronic device use. 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 employers with industrial machinery know, preventing accidents starts with making sure employees are aware of their surroundings. The inappropriate use of cell phones and other personal electronic devices imperils employees’ ability to recognize and react to hazards, such as moving equipment, passing forklifts, which can harm employees.

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 salesmen 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.

Fires and Explosions

Modern electronic devices use lithium-ion batteries, that in some cases, allegedly have caused fires and sparks while in standby or charging. Defective batteries allegedly have produced smoke and grounded a flight, ignited a car, and smoldered on a child’s pillow. One 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 electronic devices may represent a recognized fire hazard in the workplace. As OSHA’s understanding of the hazards develops, they anticipate addressing this issue under the General Duty Clause, citing employers who fail to protect employees from the recognized hazard of electronic 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 electronics 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 electronics in the workplace.

Conclusion

As OSHA’s enforcement relating to inappropriate employee electronic device 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 offices of OHSA at https://www.osha.gov/ online.

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