The New York Times this week published a series of articles revealing studies that showed that drivers who sent text messages were 23 times more likely to get into a collision.  Even the casual use of cell phones while driving may increase the risk of accidents.

In light of these reports, what — if anything — should employers be doing about this? That is the subject of a recent blog post by Russell Cawyer of the Texas Employment Law Update.   He suggests a fairly strict approach:

Given that we live in a world where Darwinian principles don’t work quickly enough to thin the herd of those too "distracted" to realize that they should not text message while driving, employers should considering adding specific prohibitions against using laptop computers, personal handheld devices, GPS/navigation devices and text messaging while driving to their vehicle fleet usage policies and other policies that govern employees who may drive as part of their duties and responsibilities….

Employers should ensure that their fleet usage policies are updated to prohibit the types of activities employees may engage in while using company vehicles or on company business and should vigorously enforce those policies. Failure to do so can give rise to potential tort claims when those employees are involved in accidents and there is an indication that the driver was distracted because of cell phone, PDA or other non-driving activity.

It’s hard to disagree with such wisdom in the abstract. After all, using a laptop while driving isn’t the safest thing.

But the problem with such blanket prohibitions is two fold: First, it treats all smart phone use in the car the same. Obviously, being stopped a traffic light to look down at a BlackBerry or get directions from an iPhone is different than typing out a letter on a laptop.  Talking on a hands-free device on a back road may be different than texting while zooming down the interstate.

But second, employees are under tremendous pressure from work to "stay connected" and to be responsive when out of the office.  While it may have been acceptable to be "out of touch" while in your car 15 years ago, that expectation has changed. And until a corporate culture is revised to make it "acceptable" again to be unreachable while driving a car, the push-and-pull of cell phone use will continue to be an issue.

Each company will need to review their policies and determine what is the appropriate level of risk and tolerance it has. Some companies will continue to ban the practice outright, which has a certain appeal to it. Others, instead of an outright prohibition, may want to focus on a overall safe driving practice, while minimizes telephone calls and suggests that employees use hands free devices. 

In any event, ensure that your company’s practices are consistent with state law. Connecticut, for example, has placed certain restrictions on the use of cell phones while driving.  And word is that the U.S. Senate is now considering linking highway funds with an outright ban on texting. Stay tuned.