Last Fall, the Federal Government enacted new regulations requiring all federal contractors to institute new policies and procedure prohibiting contractor employees from texting while driving federal government vehicles or while driving private vehicles when performing work on federal contracts.
48 C.F.R. § 52.223-18(c) states that federal contractors should adopt and enforce policies that ban text messaging while driving company or Government owned vehicles, and while driving private vehicles while performing work for the Federal Government. The new regulation also requires contractors to establish new rules and programs or re-evaluate existing programs to prohibit text messaging while driving and to conduct education, awareness, and other outreach to employees about the safety risks associated with texting while driving. Pursuant to 48 C.F.R. § 23.1105, all new solicitations and contracts issued after September 29, 2010 are required to include the new 48 C.F.R. § 52.223-18 contract clause. The new contract clause is also a “pass through” clause which must be incorporated into most subcontracts.
Currently, at least thirty states and the District of Columbia have laws that prohibit text messaging while driving (eleven of these states just passed their laws in 2010). For businesses operating in these states, the new Federal regulations should be nothing new and they should already have adopted and communicated texting while driving policies to their employees. Businesses operating in the states without comprehensive prohibitions on texting or cell phone while driving (including Florida, Ohio, Pennsylvania, Texas, and West Virginia, to name a few) and performing federal contracts should prepare and enforce employee policies that conform to the federal regulations. It may also be generally useful, to have, communicate and enforce such a policy to form the basis for a defense to a respondeat superior liability claim resulting from an employee accident while driving a company vehicle – to the extent such a defense may be available under applicable state law.
As your company responds to new solicitations and is awarded new contracts, have you noticed this new contract clause? Did your company already have a policy, or do you need to establish a new policy addressing text messaging or cell phone usage while driving company vehicles or while performing work on federal contracts? This new requirement did not get much press coverage, so many contractors may be unaware of it. Check your policies and make sure you comply with the terms of you Federal contracts. Check your subcontracts to make sure the new clause is included.
Michael Schrier is responsible for the content of this article.