Mark A. Lies and Adam Young | International Law Office | October 31, 2016
Introduction
Construction business today is regularly conducted through mobile phones, as a necessary tool for employees to communicate and access digital information. Bring your own device programmes and employee mobile phone use present a range of employment and labour liabilities for construction employers: smartphones can be a forum for employees to engage in protected concerted activity, an opportunity for unauthorised overtime work and a tool to access inappropriate images and harass co-workers.
But the biggest challenges posed by mobile phones are the attendant safety hazards. Distracted driving is the number one overall cause of workplace fatalities and mobile phones are a major cause of distraction on construction sites, in the forms of text messaging, talking and game playing. Such distractions can impugn employees’ spatial awareness, recognition of hazards and operation of dangerous equipment. Finally, studies show that defects in certain mobile phone batteries have resulted in fires and explosions. Accordingly, employers with bring your own device programmes or which provide mobile phones for use on construction sites must understand and manage the safety risks that these devices pose.
Employers whose businesses require the use of cars, vans or trucks at a construction site 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 mobile phone while driving – are of considerable interest to the Occupational Safety and Health Administration (OSHA), law enforcement, insurers 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 Labour for 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 mobile phones for telephone calls) – to be a “recognized hazard” under the general duty clause to employee safety. Penalties for wilful 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 construction machinery
Mobile phone distractions present safety hazards far beyond the driving of vehicles. At the most obvious, operators of heavy equipment, tower cranes and other construction machinery can be distracted by mobile phone use. OSHA regulations forbid the use of mobile phones in construction regulations pertaining to cranes and derricks (29 CFR § 1926.1417(d)), but the hazard exists across any dangerous equipment. Accordingly, active operation during the use of construction equipment should be strictly prohibited.
As any employer with industrial machinery knows, preventing accidents starts with making sure that employees are aware of their surroundings. Distractions from mobile phones imperil employees’ ability to recognise and react to hazards, such as passing machinery, 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 mobile phone screens, walk around while distracted and search real-world sites for game-related information. These games encourage mobile phone use and distraction while walking around, and should be prohibited from the construction site.
Mobile phone distractions can thereby exacerbate existing hazards at a construction site. Employees may already be prone to tripping on uneven terrain, may be exposed to trap hazards working in a confined space or may regularly work with hazardous chemicals. If not actively managed by the employer, mobile phone distractions can exacerbate these hazards and expose employees to a greater chance of injury, illness or death.
Multi-employer construction sites
OSHA has long maintained a Multi-Employer Worksite Policy, under which more than one construction employer may be cited for a hazardous condition that violates an OSHA standard, as long as OSHA determines that it has violated a duty under the act. This can occur even when the employer being cited had no employees exposed to the hazard at issue, as long as OSHA determines that the employer is a creating, exposing, correcting or controlling employer. OSHA can use mobile phone distractions and associated hazards against multiple construction site employers, as long as they fit into one of these categories. General contractors can generally face OSHA liability as a controlling employer for hazards at the worksite and may be found liable by OSHA for failure to address actions by subcontractor employees who utilise mobile phones improperly at the construction site and have caused or may cause an accident. Accordingly, general contractors should be cautious of improper mobile phone usage by subcontractors that could lead to injuries and OSHA citations.
Additional liabilities for distracted employees
OSHA citations and associated penalties are not the only liabilities that employers must be concerned about when it comes to mobile phone distractions. For example, 13 states ban the use of handheld phones while driving for talking. Forty six 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 up employers to liability for accidents that result from employees’ distracted driving and improper use of mobile phones.
Construction 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 that they cause during the course of employment. When an accident happens as a consequence of distracted driving or operation of 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.
Beyond potential OSHA administrative penalties and civil and criminal liability, employers should 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 workers’ compensation and other insurance coverage will rise.
Mobile phone fires and explosions
Modern mobile phones use lithium-ion batteries, which in reported cases have caused fires and sparks while in stand-by mode or while charging. Consequently, mobile phones can represent a recognised fire hazard at the workplace. This is especially true on construction sites, which often have flammable materials, dust and flammable chemicals.
As OSHA’s understanding of the hazards develops, it could address this issue under the general duty clause, citing employers which fail to protect employees from the recognised hazard of mobile phone battery fires. Employees who work around flammable vapours or dust face enhanced risks from fires and explosions.
Employers in the construction industry should bear the following recommendations in mind:
- Put into effect clear policies that unequivocally prohibit texting and talking on a mobile phone while operating any kind of motorised vehicle on site, including cars, trucks, cranes and heavy machinery.
- Consider a prohibition on workplace mobile phones in areas of the site where distractions would presents a hazard to employees. Potentially consider banning mobile phone gaming or viewing obscene materials on the site entirely.
- Carefully evaluate existing policies and the nature of the construction site to ensure that no incentives or unwritten policies and practices encourage the use of hand-held communication devices for texting or data entry while in a hazardous area or while operating a vehicle.
- Consider the use of certain applications in company-issued devices that can block the use of mobile phones, including texting and internet access, while a vehicle is moving.
- Enforce bans on texting while operating a vehicle or in hazardous areas of the site. Enforcement of these policies must be consistent and cover both management and non-management employees.
- If texting or data entry is a necessary part of an employee’s job, consider devising a schedule that allows for routine breaks during which vehicles and dangerous activities are stopped to allow for the communication or data entry to be completed.
- Inform employees of the fire hazard posed by recalled, dangerous mobile phones, particularly with regard to the ignition of flammable vapours. Prohibit recalled or dangerous mobile phones from being used on the site.
As OSHA’s enforcement relating to employee mobile phone use gains more notoriety, it is expected to have a significant collateral impact on law enforcement at all levels to address this hazard. If the foregoing recommendations are considered and adopted by employers in the construction industry, they will reduce potential individual civil and criminal liability of employees, as well as the vicarious liability of the employer.