West Virginia has become the 41st state to ban texting while driving. The law, which went into effect July 1, makes it a primary offense to text with a handheld cell phone while driving. Because it’s a primary offense, violators can be pulled over and cited. Texting already was a secondary offense, meaning someone violating a primary offense also could be cited for texting.
Beginning July 1, 2013, it will become a primary offense to talk on a cell phone without a hands-free device while driving in West Virginia.
Importance for Employers
The state’s action follows a recent open letter to employers from the federal Occupational Safety and Health Administration (OSHA). The letter states, “It is the [employer's] responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving. Companies are in violation of [OSHA regulations] 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 job.”
OSHA’s districted-driving initiative is designed to address workplace safety concerns, but it’s clear that lawmakers and other government agencies are focused on ending distracted driving. OSHA warns employers that it will investigate complaints and impose penalties on companies that fail to comply with its guidelines. Accordingly, your employees should be mindful not only of state motor vehicle laws but also of federal regulations prohibiting the practice.
Under West Virginia’s new law, “texting” is defined as reading text from or manually entering alphanumeric text into an electronic communication device. It includes but isn’t limited to short message service (SMS), e-mails, instant messages, and the like. “Using a cell phone or other electronic communication device” occurs when a driver holds the device in his hand while engaging in a phone call, viewing images, playing games, or composing, sending, reading, viewing, accessing, browsing, or retrieving e-mail, text messages, or other electronic data.
The statute imposes a $100 fine for the first offense, $200 for the second offense, and $300 for the third and subsequent offenses. Court costs or other fees won’t be assessed, but for third and subsequent convictions, three points can be deducted from the offender’s driver’s license.
The statute doesn’t apply to emergency responders during the performance of their official duties. Additionally, a person using an electronic communication device to report a fire, traffic accident, road condition, or other emergency is exempt.
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Given OSHA’s declaration and the state’s mandate, employers should consider establishing and enforcing a distracted-driving policy. Your policy should state that employees are prohibited from e-mailing, texting, or using any type of handheld phone or communication device, whether it’s personal or company-issued, while operating a company vehicle or driving a vehicle for business use.
Of course, as with any employment policy, putting it in writing isn’t enough. The policy needs to be effectively communicated to be taken seriously by employees and enforced by management. Employees should acknowledge in writing that they have read and will comply with the rule. The policy should be discussed, and the dangers of distracted driving should be emphasized at employee training meetings and seminars.
Excerpted from West Virginia Employment Law Letter and written by attorneys at the law firm of Steptoe & Johnson PLLC. WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of this article, please contact any of the attorneys at Steptoe & Johnson PLLC.