Drones Are Coming

The easing of restrictions on drones will expand their commercial and government use — including OSHA.

Quietly, without fanfare…

On December 28, 2020, the Federal Aviation Administration (FAA) published a final rule that will permit operators to fly small drones over people, as long as they comply with the rule. The FAA’s final version of the rule amends 14 CFR part 107, sub part D, and expands the conditions under which smaller drones can operate without a waiver or exemption.

The rule stipulates that all but the very smallest drones are now required to transmit a digital “license plate” that authorities can use for identification. Requiring an ID broadcast addresses some of the key concerns of federal law enforcement — at least for now.

Integrating drones into the national airspace

The lack of a final rule has been a regulatory roadblock for the drone industry’s growth, which promises to be significant in the coming years. For those who support the responsible use of drone technology, the publication of the final rule represents a significant step toward integrating drones more fully into the national airspace.

Private industry has been excited about the potentials of drone use for some time. UPS, Amazon, and Walmart have all shown interest in the technology and are researching and piloting different approaches.

But despite the commercial appeal, the widespread use of drones for package delivery is still many years away. Before we can fill the sky with swarms of pilotless aircraft delivering groceries, there are more than a few traffic management issues to work out.

The FAA is currently working with private industry to develop a comprehensive traffic management system for drones. The FAA rightly believes that a centralized system must be in place for the public to accept widespread use. In other words, to build public confidence and support, government authorities must be able to identify and stop illegal and unsafe drone operators.

Integrating drones into OSHA inspections

Before 2018, the Occupational Safety and Health Administration (OSHA) used drones infrequently. They were most useful after an accident when the worksite was too dangerous to investigate in person, or when the thing that needed investigating was at a great height, like the top of a communications tower.

With the rapid advancements in drone technology, the agency’s use of drones for certain kinds of inspections increased exponentially.

In May 2018, OSHA issued a memo to all regional administrators about the use of drones. While the memo provided guidelines for establishing a drone program aligned with the FAA’s final rule, we don’t know yet how aggressively the agency will deploy drones in the immediate future. However, their use is bound to increase, and employers should get ready — and know their rights — if they are informed about an OSHA drone inspection.

How to prepare

 In the advice I provided in 2019, I cautioned employers about giving consent for a drone inspection. I still believe these inspections undermine the employer’s right to accompaniment, which is guaranteed during the walk-around inspection. Consent also jeopardizes any defense based upon a reasonable expectation of privacy afforded by the Fourth Amendment.

• Consider whether the drone inspection will reveal operations, processes, or equipment that are proprietary before giving consent.
• The inspection drones that OSHA will be using may operate up to 400 feet above ground level — or above the top of any structure. That is a dramatically different vantage point than an inspection team walking around on the ground. Employers are wise to remember that the scope of an OSHA inspection can expand significantly if a drone observes other violations “in plan view.”
• You have the right to review the inspection and flight plan before giving consent.
• If you do consent, remember that the OSHA drone inspection team must always keep the drone in sight. Just as in any inspection, the employer should accompany the drone team at all times.

If you have received a notice about a drone inspection and have questions about your response — or want to discuss your preparedness in a more general sense — please feel free to contact me.

About the Author: James Laboe

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