Review Your Cell Phone Policy

Companies that allow their drivers to use handheld cell phones while driving face a maximum penalty of $11,000.

In light of a new final rule from the U.S. Department of Transportation (DOT) rule prohibiting drivers of commercial motor vehicles (CMVs) from using handheld cell phones while operating their vehicles, GAWDA member companies should review their cell phone use policies for all employees and vehicles.

The truck rule, which became effective January 3, 2012, and affects all GAWDA members, is the latest action by DOT to discourage distracted driving by all operators of commercial motor vehicles.

In September 2010, the Federal Motor Carrier Safety Administration (FMCSA) issued a regulation banning text messaging while operating a commercial truck or bus. The Pipeline and Hazardous Materials Safety Administration (PHMSA) followed with a companion regulation in February 2011, banning texting by intrastate hazardous materials drivers. The use of hands-free technology is still allowed under the new rule, however. Also, the rule does not prohibit the use of CB or two-way radios.

The new final rule covers both drivers of commercial motor vehicles in interstate commerce and intrastate drivers who operate CMVs transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73. The rule prohibits those drivers from using a handheld mobile telephone while operating a commercial truck.

A new set of FAQs on the DOT website clarifies the requirements. Hands-free use of a mobile telephone is allowed using either a wired or wireless earpiece, or the speakerphone function of the mobile telephone. Wireless connection of the mobile telephone to the vehicle for hands-free operation of the telephone, which would allow the use of single-button controls on the steering wheel or dashboard, is also allowed.

In addition, the FAQs explain that a driver may use push-to-talk mobile communications equipment while driving, provided the driver does not reach for, dial or hold the actual mobile telephone in his/her hand while driving, and the driver is able to touch the button needed to operate the push-to-talk feature from the normal seated position with his/her safety belt fastened.

Drivers who violate the restriction face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, for drivers in interstate or intrastate commerce, states will suspend a driver’s commercial driver’s license after two or more serious traffic violations. Companies that allow their drivers to use handheld cell phones while driving face a maximum penalty of $11,000.

The final rule does not restrict mobile phone use “when the driver has moved the vehicle to the side of, or off of, a highway and has halted in a location where the vehicle can safely remain stationary.” Additionally, the final rule provides an exception allowing drivers to use their handheld mobile telephones if necessary to communicate with law enforcement officials or other emergency services.

The DOT rule requires employers to “ensure” compliance by commercial vehicle drivers, but does not require that employers have policies on distracted driving or cell phone use while driving. Nevertheless, now is a good time for all companies to review and revise their cell phone policies (or to adopt one if you do not have one).

GAWDA’s Safety Committee has developed a sample company policy on distracted driving. The GAWDA policy would apply to all employees operating any vehicles on behalf of the company, not just those subject to DOT regulations. The sample policy prohibits the use of any communication device while driving a company vehicle. This includes talking or listening to a cellular phone, text messaging, reading or responding to email messages or accessing voice mail. Under the GAWDA policy, Bluetooth or other hands-free communication devices may be used only when a company vehicle is parked in a safe location.

GAWDA’s sample policy is much more strict than the DOT rule, but it is clear, easy to follow and provides the best insurance against a tragic crash resulting from distracted driving. Studies have shown that drivers who use cell phones are four times more likely to be in a crash while using a cell phone. It is not worth placing your entire company at risk for a little extra convenience.

Gases and Welding Distributors Association
Richard P. Schweitzer, Esq. GAWDA’s Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, D.C. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.