Could an OSHA drone soon be hovering over your facility or jobsite to inspect it for safety violations?

Up until now, that prospect was not very likely—according to a Nov. 29, 2018, Bloomberg Law article, OSHA employed camera-equipped drones for inspections only nine times in 2018.

And, so far, OSHA's use of eyes in the sky reportedly has been limited to sites considered too dangerous for in-person, on-the-ground reconnaissance.

However, many observers believe the agency will be stepping up its use of drones, expanding to more routine safety inspections.

"I think we're probably going to see an increase in drone use across the board in all sectors, so I don't see why it wouldn't apply here," says Megan Baroni, a partner with Robinson & Cole LLP.

"It's hard to say exactly how OSHA is going to roll it out, but since they're still at the beginning of the program, my thought is that they're going to continue to use drones and use them more frequently in situations where they feel they have difficulty inspecting.

"But perhaps the definition of what is difficult to inspect will start to expand."

OSHA Memo

Although the possibility of OSHA using drones has been discussed for several years, the buzz grew louder after a recent Freedom of Information Act request exposed an internal OSHA memo dated May 18, 2018, that provided the agency's regional administrators with rules for conducting inspections with "unmanned aircraft systems."

The memo authorizes the use of drones "to collect evidence during inspections in certain workplace settings, including in areas that are inaccessible or pose a safety risk to inspection personnel" and for "technical assistance in emergencies, during compliance assistance activities, and for training."

OSHA also indicates in the memo that it will adhere to current Federal Aviation Administration standards and state and local regulations for operating drones but notes that it is looking into obtaining a Blanket Public Certificate of Waiver or Authorization to operate drones nationwide, which would give the agency more flexibility.

The bulk of the memo outlines stringent operational and safety rules for conducting aerial inspections, including a requirement that any OSHA region planning to use drones must designate a program manager, who will oversee the entire operation.

Be prepared to work with OSHA to have a flight plan and procedures in place so you can have as much control as possible over the use of the drone on your property.
— Megan Baroni, Partner, Robinson & Cole LLP
OSHA also recommends that three-person crews be used for all drone inspection missions.

No Aerial Surprises'

It's important to note that the memo requires OSHA officials to obtain "express consent" from employers before deploying a drone.

So it would appear that employers don't have to worry about surprise safety inspections from the air, although some experts have pointed out that withholding consent may raise red flags with regulators.

Nevertheless, says Baroni, there are situations where employers should seriously consider refusing an OSHA request to conduct an inspection using a drone—including when such an inspection would interfere with equipment, or pose a safety concern or disrupt operations if something goes wrong.

"That may be reason enough to say, 'no, we don't think it's safe to fly a drone over property like this,'" says Baroni.

Be Prepared

The OSHA memo also requires agency officials to notify "personnel on site" prior to an inspection involving the use of a drone.

"One of the things OSHA makes clear is that when they're going to use a drone, all employees have to know, because they're going to wonder why this thing is flying around," says Baroni.

"You see cases all the time—not necessarily in the OSHA context—of people shooting drones down. I'm not suggesting that would happen, but everyone needs to be aware of what's going on."

For now, Baroni advises, the important thing is to be prepared for the new OSHA tactic.

"Employers need to be aware of the policy and the fact that OSHA might request to use a drone as part of an inspection and be prepared for that request," she says.

"Be prepared to either say no, and tell them why you're saying no, or if you're going to allow it, be prepared to work with OSHA to have a flight plan and procedures in place so you can have as much control as possible over the use of the drone on your property."


For more information, contact CBIA's Phillip Montgomery (860.244.1982).

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