While an injury or illness caused by use of a device for purely personal use will seldom create employer liabilities, dual-use of a device can create work-related injuries and illnesses that are governed by the Occupational Safety and Administration (OSHA) and state workers’ compensation law. Further, distracted driving while using a mobile device can result in injuries to employees and third parties that can result in significant liability.
149 Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554 (2007). 150 Id. at 571.
1. Repetitive stress—“Blackberry Thumb” and “Text Neck”
The American Society of Hand Therapists (ASHT) has issued a warning regarding repetitive stress injuries to the thumb and many physicians agree. Similarly, other groups and physicians have warned that neck injuries can be caused by cradling a small cellphone between the head and shoulder or by continuously bending the neck straight down to read a small screen. When an employee begins using their own device for work-related purposes, the work relationship of any injury will be largely established and will be very difficult to separate from the effects of personal use of the device. These potential injuries will heighten the need for employers to provide training and guidance on ergonomic use of dual-use devices, including but not limited to appropriate body mechanics, total time spent using the device, and reporting any discomfort for appropriate review and responses.
2. Brain injury from cellular signals
Mobile devices emit a form of electromagnetic radiation called radio frequency (RF). During use, the body tissues next to where the phone is held absorb RF energy. Heating is the only known biological effect of RF energy. High doses of RF energy cause localized tissue heating, but RF exposure does not cause an increase in body temperature. A user’s exposure to RF energy depends on several factors including: the model of the device; the amount of time the user spends on the device; whether the user is using a hands-free device; the amount of mobile traffic in the area at the time of use; and the distance to the nearest tower (the farther away the user is from a tower, the more RF energy it takes to get a signal). The amount of RF energy absorbed from the device is called the specific absorption rate (SAR). The Federal Communications Commission (FCC) regulates SAR levels, and device manufacturers must report the SAR level of their products to the FCC. The current SAR level limit is 1.6 watts per kilogram of body weight. To date there have been no successful legal claims regarding device phone radiation, but, as noted above, dual-use of a device may establish work relationship exposing employers to OSHA regulation or workers’ compensation claims.
3. Distracted driving and other activities
Drivers can be distracted for many reasons, including mobile device use. According to the National Highway Safety Council, nearly 5,500 people died (16% of all fatalities) and 500,000 were injured in crashes in 2009 involving a distracted driver. Statistically, a texting driver is 23 times more likely to be involved in a crash. Further, a study by Car
and Driver found it takes a texting driver twice as long to react than one who is legally intoxicated.
Based on these statistics, the Occupational Safety and Health Administration (OSHA) started a Distracted Driving Initiative. While the initiative covers all reasons for distracted driving, OSHA’s initial emphasis is on the dangers of texting while driving. In addition to encouraging employers to have a policy prohibiting employees from texting and talking on cellphones while driving, OSHA states it will investigate and issue citations under the General Duty Clause if it receives a complaint that a company requires its employees to text while driving or “organizes work so that texting is a practical necessity.” The General Duty Clause is a catch-all for OSHA, and simply obligates employers to create and maintain a safe and healthful workplace. Monetary penalties for General Duty and other OSHA violations are limited by statute and are based on the severity of the incident and the employer’s past safety record, among other factors. However, of greater financial concern is the possibility that an employer will be liable for damages to persons injured
in an accident caused by a worker using a cellphone while driving on company business. There have been several jury verdicts and settlements in the $15-25 million range in cases involving drivers who were allegedly distracted by using their cellphones as part of their work.
Other than OSHA’s intended enforcement of the initiative through its General Duty Clause and a DOT guidance banning commercial truck drivers from texting, the federal government has not enacted any laws prohibiting talking or texting while driving, although Transportation Secretary Ray LaHood has identified distracted driving as a “national epidemic” and called upon Congress to enact a law for a federal ban applicable to any type of vehicle on any road in the country. Several states, however, have passed laws of this nature: 30 states plus the District of Columbia and Guam prohibit all drivers from texting while driving, and eight states and the Virgin Islands prohibit all drivers from using hand-held cellphones. Other states only prohibit school bus drivers from using a cellphone while driving (e.g., Arizona) or teens from talking and/or texting (e.g., Indiana). No states have banned all cellphone use while driving, despite research showing no difference in accident rate when a driver is holding the cellphone versus using a hands-free device.
According to the DOT, over 2,000 U.S. companies already have adopted distracted driving policies covering over 12 million workers. Implementing and enforcing an effective mobile device use policy not only protects employees and the public from the dangers of distracted driving, it also can reduce OSHA citations and protect companies from being responsible for paying high amounts in damages for accidents caused by device use while driving.