OSHA’s investigation techniques are keeping pace with technological developments. OSHA is now using “unmanned aircraft systems” or “drones” to collect evidence during inspections and investigations. Drones may be deployed in those workplace investigations where there are areas that are inaccessible or pose a safety risk to inspection personnel. In 2018, OSHA deployed drones with the employers’ consent in nine inspections where conditions were too dangerous for inspectors to enter. Some examples of dangerous conditions where drones were used included an oil rig fire, a building collapse, an accident on a television tower and a chemical plant explosion.
Prior to using a drone during an OSHA inspection, OSHA must obtain express consent from the employer to deploy the drone. There are concerns that the use of drones could expand the scope of OSHA’s inspection, but that risk exists anytime OSHA investigators come onto a worksite for an inspection. OSHA inspectors are permitted to cite employers for violations that are in plain sight during the course of the inspection. Drone cameras may capture more hazards in plain sight than an inspector would normally see during a traditional walk around inspection. OSHA also cooperates with the U.S. Environmental Protection Agency (EPA). There is a possibility that OSHA drones could discover conditions that violate the EPA laws and OSHA may share that information with the EPA.
If an employer does consent to the use of a drone during an OSHA inspection, consideration must be given to whether the drone can be flown without causing damage or interruption to equipment and processes on site. Another consideration to take into account is whether there is any risk that the drone’s images would expose a company’s trade secrets or confidential equipment or processes. Prior to giving consent, Employers and OSHA should agree upon the actual flight plan and the area where photographs and other data may be collected. Additionally, the agreement should include a requirement that OSHA will share any photographs and other data collected by the drone during the inspection. Once consent is given, the employer should monitor OSHA’s flight operations to ensure that OSHA is abiding by the agreed upon flight parameters, as well as OSHA and FAA requirements surrounding the use of drones.
OSHA has a May 18, 2018 enforcement memorandum on its website with more details regarding the use of drones during inspections and investigations. According to the memo, drones may only be flown during daylight hours and the operator must maintain a line of sight with the drone at all times. Flight speed may not exceed 100 mph and the drone may not be flown more than 400 feet above the ground. The drone must not be flown over any on-ground personnel who are not directly participating in the inspection. OSHA must notify all persons on site before starting the drone flight.
To prepare for the possibility that OSHA may request drone use during an inspection or investigation at one of your worksites, employers should plan for this contingency. This planning may include the designation of a member of management in your safety department and tasking that person to become familiar with OSHA’s guidelines regarding drone use. An internal procedure and checklist can be developed regarding what terms and conditions to which the company is willing to agree as a condition for consenting to OSHA using a drone during its inspection. This advance planning is critical to protecting your rights in connection with an OSHA inspection and investigation.