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Published in the Manchester Union Leader, May 2012
KNOW THE LAW
This question was answered by Katie Kiernan Marble of the McLane
Law Firm
Q:My company employs commercial motor vehicle drivers and I want
to restrict their use of cell phones. Is that permissible under the
law?
A.Not only is this permissible, but in most circumstances it is
actually required. As of January 3, 2012, the Department of
Transportation's Federal Motor Carrier Safety Administration
and Hazardous Materials Safety Administration adopted a rule
restricting commercial motor vehicle (CMV) drivers' use of
mobile phones and devices. Under this rule, CMV drivers may only
use a mobile device where each of the three following exist: (1)
the driver can operate the mobile device with the push of a single
button; (2) the device is within the driver's reach; and (3)
the device is not held in the driver's hand.
This means that for use of a mobile device to be allowed, it
must be either mounted or securely within the driver's reach.
Even the passenger seat is considered out of reach. Drivers cannot
even reach for a device with the intent of using the speaker phone
function. Further, the device itself must have a speaker phone,
wireless ear piece, or other means to allow the driver to use the
device without holding it.
Because the driver must be able to use the device with a single
push of the button, certain types of mobile devices cannot be used.
Mobile phones cannot be used because the driver would be required
to type in a phone number. Additionally, mobile devices equipped
with the push-to-talk feature, which have previously been used by
CMV drivers, is prohibited under this rule because the push-to-talk
feature requires the driver to push a button more than once.
However, this new rule does not address, and therefore does not
prohibit, CB or two-way radios.
Although this new regulation does not require a formal written
policy or training program, employers who utilize CMV drivers
should implement a policy consistent with this regulation and train
their drivers accordingly. The policy should explicitly state what
types of phones are not allowed under this rule, consequences for
failure to comply, and indicate a specific person (or position)
which the drivers can contact with questions. Under the rule,
drivers themselves can be fined $2,750 per violation and employers
can be fined from $11,000.
These actions will not only keep your business in compliance
with the law, but also keep your drivers safe while on the
road.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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