Look! Up in the sky! It’s a bird, it’s a plane, it’s … OSHA?

Look!  Up in  the sky! It’s a bird, it’s a plane, it’s …  OSHA?

Source: Safety Law Matters / Husch Blackwell / Posted in ENFORCEMENT UPDATES, OSHA

An internal DOL memorandum last year to OSHA regional administrators confirms that OSHA can deploy unmanned aircraft systems (UAS), otherwise referred to as drones, equipped with cameras to assist with its enforcement and regulatory functions. What do employers need to know? How should you respond to a drone inspection?

In 2018, OSHA reportedly conducted nine inspections that were supported by drones. Those inspections predominately, if not exclusively, involved situations where access to certain portions of the jobsite posed a substantial safety risks to OSHA compliance officers.

While OSHA’s use of UAS technology in those situations sounds logical, the agency’s use of UAS raises several questions for employers:

• When and where can OSHA use its drones?

• Will this “atypical” use of drones will be expanded to routine inspections?

• What risks does this new tool present for employers?

OSHA’s plans for drone inspections raise new issues for employers

According to the memo, OSHA has identified several uses for drones including but not limited to:

• Collecting evidence at work sites including areas that are inaccessible or pose a safety risk to compliance officers (currently, OSHA’s memo limits the drone’s sensors to traditional cameras, but commercial drones already support non-visual sensors)

• Providing technical assistance during emergencies and after accidents

• Providing compliance assistance, and

• Providing support to training exercises.

OSHA also disclosed plans to potentially file an application with the FAA for a blanket public Certificate of Authorization (COA) which would enable OSHA to operate its drones for a specified purpose on a nationwide basis. The memo’s language leaves open the possibility of OSHA adding more applications to this list.

Understandably, the potential expanded use of drones to conduct aerial inspections raises concerns among employers regarding their rights and risks with respect to drone inspections. These concerns include:

• Does the use of drones, which can quickly provide a broad aerial view of a workplace, expand the workplace area that OSHA compliance officers consider to be in plain sight (since they may inspect and cite violations that are in plain sight)?

• Do drone inspections broaden the scope of the entire inspection and increase the number of hazards potentially detected by the compliance officer, resulting in more citations issued?

• Does the use of drones jeopardize trade secrets because the visual evidence is not labeled as confidential (as confidential documents would be)?

• Should employers deny consent to OSHA’s drone inspection, or work collaboratively with OSHA?

• Will a blanket public COA change OSHA’s obligations to obtain employers’ consent before beginning a drone inspection?

OSHA’s not entirely free – FAA drone regulations and the OSHA memo restrict drone inspections to a degree

In June 2016, the FAA published initial regulations for commercial drone operators, which include public entities such as OSHA. In 2018, OSHA developed its own, more restrictive internal guidelines.

Under OSHA’s guidelines, each of the 10 OSHA regions must designate a UAS program manager to oversee the regions’ implementation of the OSHA drone program. Regional UAS program managers are instructed to provide a cost/benefit analysis and hazard assessment in its recommendation to the Regional Administrator prior to deployment of drones. The OSHA memo also requires OSHA to:

• Develop a flight plan prior to deployment of the drone

• Work in teams typically consisting of a certified remote pilot in command, a visual observer and a safety monitor

• Obtain the express consent of the employer to use the drone on the property

• Inform personnel at the work site of the aerial inspection prior to launching the drone

• Coordinate with local law enforcement to comply with state laws and local ordinances regarding drone operations

At this time, unless and until OSHA pursues a public blanket COA and the FAA grants the COA, or unless OSHA obtains a waiver, it must continue to comply with Part 107 of the FAA rules as follows. Drones must:

• Weigh less than 55 lbs.

• Operate within the visual line of sight of the remote pilot in command

• Not exceed the maximum groundspeed of 100 mph

• Maintain an altitude of 400 ft or lower from the ground unless the drone is flown within 400 ft of a structure, and then it must maintain an altitude of not higher than 400 ft above the structure

• Not operate over any persons not directly participating in the operation, not under a covered structure or in a covered vehicle

• Operate only during daylight hours, or twilight hours if operating with anti-collision lighting

• Not operate a drone from a moving aircraft or vehicle

How should you respond to a drone inspection request?

The use of drone technology to conduct safety inspections of employer facilities is evolving. Given the reductions in costs and time associated with the use of drones, it is likely that aerial inspections will expand beyond high-risk situations and be used during routine safety inspections.

• Check the plans and consider consent. Certain situations, however, justify withholding consent to drone inspections. Just as compliance officers present their credentials at the start of an inspection, employers should insist on seeing the drone pilot’s certifications as well as the route of flight for the drone before any drone operations begin.

• Safety hazards in the flight plan? Employers should examine the planned route of flight to look for locations where the flight might create a safety hazard for employees engaged in their normal work practices. There is no guarantee in the memo that OSHA will exonerate an employer from a general duty violation arising from a recognized hazard that the drone operation created.

• Confirm neighbors’ approval. Employers should consider asking OSHA if the pilot has obtained written approval from adjacent property owners so that the employer does not become entangled with invasion of privacy complaints or nuisance claims. Similarly, at multi-employer worksites, OSHA’s memo does not discuss the agency’s course of action if there is a disagreement between the employers over giving consent for the inspection.

• Protect trade secrets. Employers may want to consider withholding consent if the aerial inspection poses a risk of revealing processes or equipment that constitute trade secrets or poses a safety risk to processes or equipment or operations. Under these circumstances, employers should provide information concerning the risks to justify their refusal to provide the consent requested.

• Work cooperatively and supervise. Absent such concerns, employers should be aware of local and state restrictions on the use of drones and should collaborate with OSHA at the outset to develop a flight plan, limit the scope of the inspection to the hazards at issue, evaluate whether the drone poses a hazard to the facility and obtain a copy of the footage videoed by the drone. As with a traditional inspection, a company representative should accompany the OSHA inspectors operating the drone.

At this time, it’s unclear whether OSHA will proceed with plans to obtain a blanket public COA or whether the FAA would be inclined to grant the request.

By Erik Dullea on June 13, 2019

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