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09 January 2019
The Occupational Safety and Health Administration (OSHA) is the federal agency with jurisdiction over employee safety and health issues of most employers in the United States. During an OSHA investigation, a compliance and safety health officer (CSHO) will normally conduct a 'walkaround' inspection of the worksite. An employer or employee representative may accompany the inspector. During this inspection, the CSHO will often take photographs and measurements and speak with employees to determine whether to issue citations against the employer. Now, OSHA is modernising its enforcement tools with the use of camera-equipped drones.
According to a recent report by Bloomberg Law, OSHA used such drones for nine inspections in 2018. The Bloomberg report cites OSHA guidance that indicates that the drones were often used at worksites following an accident where it was too dangerous for a CSHO to enter or be nearby, including:
Needless to say, the use of drones – and the likely increase of such use – in an OSHA inspection raises some novel issues that need to be considered by employers.
The guidance indicates that OSHA will request permission from the employer before utilising the drone, and if the employer does not consent, the drone will not be used. It is well-settled that an employer can generally require OSHA to obtain an inspection warrant before entering the worksite. Although the determination of whether an employer should do this is always a fact-sensitive analysis, conventional thinking suggests that the better course is usually to define the scope of the inspection with the CSHO as opposed to requiring a warrant. However, even if the scope of the inspection is defined, citations may be issued if recognised hazards are in plain sight. It seems likely that a drone taking images from above might capture more hazards in plain sight than a traditional walkaround where the CSHO is usually directed to the site of an accident by the most direct route. Further, if potential trade secrets may be exposed by drone images, this should also be addressed before consent is given.
Conventional strategy in responding to an OSHA inspection also suggests that the authorised employer representative accompanying the CSHO essentially mimics the CSHO's investigation (eg, taking the same pictures and measurements) so that the employer possesses the same data as the CSHO through the walkaround. This objective may be more difficult to accomplish if a drone is utilised. Accordingly, the employer should consider reaching an agreement with OSHA that could include the specific flight plan to be used, that all photographs will be promptly shared and that an authorised representative observes the drone's operation during use.
Bloomberg Law also states that OSHA's 18 May 2018 memo requires each of the agency's 10 regions to designate a staff member as an unmanned aircraft programme manager to oversee training requirements and evaluate reports submitted by drone teams. It further requires that drone crews follow Federal Aviation Administration (FAA) requirements, including a mandate that the drone pilot must have passed an FAA test for piloting remote-controlled aircraft and be certified by the FAA. The memo is silent on the size and model of drones to be utilised, except to state that they must weigh less than 55 pounds.
There is little doubt that this enforcement tool will see increased use in future years and businesses would be prudent to address the use of drones in their OSHA response strategy now. Until some of these issues become more fully developed and depending on the specific facts, drones may present a situation where the employer might consider going against conventional thinking and err on the side of withholding consent.
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