OSHA is Starting to Use Drones and Employers Need to Be Prepared

The use of drones to perform a variety of surveillance and inspection tasks has been growing exponentially in recent years, and the federal framework that will ultimately govern drone use for everybody — government agencies, commercial operators, and private citizens — is still being established.

Policies are evolving rapidly, however, and OSHA’s announcement and publication of its own drone program last year provides some valuable insight into how federal policy is currently being shaped. There are also some significant implications for employers as OSHA drone inspections become more common in the months ahead.

How should you prepare for — and respond to — inspections and citations involving a drone? Below are a few things to consider:

Consider consent carefully: OSHA cannot use a drone for site/facility inspection without your consent. Before giving consent, however, you must take into consideration that what is in “plain view” at ground level changes a lot with a drone. The “bird’s eye view” of your worksite or facility encompasses a much larger area. Consenting to such an inspection will waive any defense based upon a reasonable expectation of privacy afforded by the Fourth Amendment.

Clarify data collection: The increased use of drones for OSHA inspection raises several important legal issues, including the setting aside of the conventional inspection precedent of having your (human) representative accompany the (human) OSHA inspector throughout the inspection. This is done to ensure that the employer and OSHA are seeing the same thing and collecting the same data. How is that accomplished with a drone?

You should receive assurance that all photographs, video, and any other data collected will be shared promptly. OSHA isn’t known for being prompt in sharing such photographic or video evidence, so make sure this is clear when giving consent.

Understand the flight plan: You should ask for and receive the specific flight plan, timing, and other details about the drone inspection. Make your consent contingent on receiving this information.

Pre-determine the flight plan: Some employers should consider pre-determining the flight plan through their site or facility. Many of you already have such routes in place for human inspectors, so it makes sense to do this for drones as well. With pre-determined flight paths, employers may be able to minimize the inspection drone from “wandering” around too much.

Get help: If you have received a notice about an OSHA drone inspection and have questions about how to respond — or want to discuss your preparedness for an OSHA drone inspection in a more general sense — I encourage you to contact me.

It’s a brave new world out there, and I’m here to assist you in negotiating this emerging regulatory landscape.

About the Author: James Laboe

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