According to a recent report by Bloomberg Law, OSHA used camera-equipped drones for nine inspections so far in 2018. The Bloomberg report cites to OSHA guidance that indicates the drones were often used at worksites following an accident where it was too dangerous for CSHO’s to enter or be nearby and included an oil drilling rig fire, a building collapse, a combustible dust blast, an accident on a television tower, and a chemical plant explosion. Needless to say, the use of drones and 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 utilizing 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 generally be issued if recognized 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. Furthermore, 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 authorized employer representative accompanying the CSHO essentially mimic the CSHO’s investigation, e.g., take the same pictures, measurements, etc. so the employer essentially possess the same data as the CSHO through the walkaround. This objective may be more difficult to accomplish if a drone is utilized. Accordingly, the employer should consider reaching an agreement with OSHA that could include the specific flight plan to be used, agreeing that all photographs will be promptly shared and/or have the authorized representative observe the drone’s operation.
Bloomberg Law also states that OSHA’s May 18 memo requires each of the agency’s 10 regions to designate a staff member as an unmanned aircraft program manager to oversee training requirements and evaluate reports submitted by drone teams. Thus, 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 its OSHA response strategy now. Until some of these issues become more fully developed and depending, of course, 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.