Robinson & Cole LLP
These days, it is not uncommon to see drones flying overhead. But employers beware…you might see one during your next workplace inspection. Earlier this year, OSHA issued a memo formalizing its use of drones for inspection activities, and, according to a recent report by Bloomberg Law, it used drones for 9 inspections this year.
The memo indicates that OSHA can use drones for a number of purposes, including inspection of inaccessible or unsafe areas, for technical assistance in emergencies, and during compliance assistance activities. The memo sets forth the parameters OSHA must follow when using drones, but it also indicates that OSHA is exploring the option of obtaining a Blanket Public Certificate of Waiver or Authorization (COA) from the FAA to operate drones nationwide.
The memo states that OSHA must obtain express consent from an employer prior to using a drone on any inspection. In addition, on-site personnel must be notified of the inspection to ensure cooperation and safety. The flight report and any data collected by the drone becomes a part of the inspection case file.
OSHA’s use of drones has the potential to expand its violation-finding capabilities during any inspection. Drones allow OSHA a bird’s-eye view of a facility, expanding the areas that can be easily viewed by an inspector. While most inspections can and should be limited in scope, OSHA can cite employers for violations that are in plain sight. Employers must consent to the drone use, but the question remains as to how the scope of an investigation might change if an employer refuses. In addition, it is unclear if that policy will change if OSHA is granted a Blanket Public COA from the FAA to use drones nationwide for inspection purposes.
Employers should be aware of this policy and the fact that drones may be a requested part of their next OSHA inspection. Employers may want to give some thought to their facilities and whether drones can be safely flown without causing damage to equipment or processes. If employers allow OSHA to use drones during an inspection, the employer may wish to be involved in the development of the flight plan and attempt to get copies of any collected data. And remember, your express consent is required.