Courtesy of WSRCA Legal Counsel: Trent Cotney, Cotney Construction Law
Early last year, the Occupational Safety and Health Administration (OSHA) announced the start of an all new approach to its safety inspections—through drones. Since its introduction, at least nine inspections were conducted with camera-enabled drones. Of these nine inspections, the majority were used due to hazardous circumstances on-site such as a recent collapse, fire or explosion.
Drone usage during safety inspections provides OSHA with a quick and detailed view of an employer’s facility, and possibly a more expansive view of what might have been seen by an in-person inspector. While this might be good for OSHA as it significantly cuts down time needed to perform such an inspection, employers should be wary of the ramifications.
The good news? Drone usage for OSHA’s safety inspections doesn’t come without restriction. In an eight-page memo addressed to its regional administrators on May 18, 2018, OSHA laid out the guidelines and procedures it must adhere to in order to use Unmanned Aircraft Systems (“UAS”) a/k/a drones. One established limitation on this type of inspection is employer consent. This means that employers have the right to say no to the little robot flying above your worksite. But is “no” really the best answer?
Although employers have a 4th Amendment right to object to the expansion of an overbroad search, this doesn’t necessarily mean that you should deny OSHA the ability to inspect your site through drone usage. By making this objection, OSHA is then required to obtain a search warrant to inspect your property. This objection, only delaying the inevitable, might not be worth getting on OSHA’s bad side. Instead, see if you can work with OSHA to create a limit in the scope of the search and participate in the drone flight planning, which in turn will help address concerns regarding the expansive view that comes with drone inspection.
Another concern to watch out for is the possibility of OSHA being granted its request for a Blanket Public COA from the Federal Aviation Administration (FAA). This Blanket Public COA will allow OSHA to use drones anywhere in the country. If granted, it is unclear how the employer consent will play into this, if at all.
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