The Federal Aviation Administration (FAA) announced a final rule allowing operators to fly small drones over people under certain circumstances. According to this new rule could lead (OSHA) to push for the increased use of drones in worksite inspections.
OSHA inspections must adhere to what is called the “plain sight rule.” That means anything the compliance officer lawfully observes during the inspection can be the basis of a citation. As you might well expect, the scope of what is in plain sight expands considerably when drones are used by inspectors.
However, agency policy also bans compliance officers from exposing themselves to hazards during inspections, which for example often means limiting their ability to climb ladders and otherwise observe conditions on towers or hard-to-reach places.
In recent years, OSHA has sought to get around those limitations by photographing and videoing worksites with airborne drones, also called Unmanned Aircraft Systems (UAS). OSHA’s enforcement policy concerning the use of UASs in inspections currently requires the agency’s inspectors to obtain express consent from the employer prior to using a drone.
One dilemma for the employer is whether the inspectors will then make the decision to widen the scope of the investigation if an employer won’t allow the use of drones. If an employer does choose to allow OSHA the use of drones during an inspection, It is recommend to get involved from the outset in the development of the flight plan and attempt to get copies of any data that is collected.
As of now, no regulation has been written compelling employers to allow the use of drones, and many employers choose not to allow them, citing safety hazards of drones falling on employees and other individuals near the worksite.
Two years ago when OSHA began exploring the use of drones in inspections as a regular enforcement tool, it approached the FAA about obtaining blanket authority to do so, which it apparently has not yet obtained. Prior to 2018, OSHA most frequently deployed drones following accidents at worksites that had been considered too dangerous for OSHA inspectors to enter, included an oil drilling rig fire, a building collapse, a combustible dust blast, an accident on a television tower, and a chemical plant explosion.
The FAA’s new final rule amends its regulations to “expand the ability to conduct operations over people, provided that the operation meets the requirements of one of four operational categories” described in a newly established standard. The agency described the change as “the next step in the FAA’s incremental approach to integrating UAS into the national airspace system.”
Because the FAA’s new rule expands the circumstances under which drones can operate without a waiver or exemption, it could open the door for OSHA to change its policy and use drones more freely at worksites—without employer consent—if OSHA can deploy equipment complying with one or more of the new criteria.
The two agencies also may engage in a collaborative initiative in the future to allow for even more expanded use of drones by OSHA personnel.
“OSHA may seek to have a greater voice in partnering with the FAA to develop specific rules governing drone use in workplace inspections, particularly if the FAA’s ‘incremental approach’ continues to allow for more flexible drone use.”
So, you do have a choice. If OSHA does approach your company use this form below:
Policy Regarding Warrantless Searches
The foregoing Notice should be prepared in the name of your company. Have it ready to deliver to any OSHA inspector upon his arrival on your premises. In the event that your plant is located in a state which has its own OSHA-approved State plan, adapt the notice accordingly.
Notice to OSHA
It is the policy of Name of Company to cooperate with any governmental agency seeking to lawfully enforce federal, state or local laws and regulating pursuant to the safeguards guaranteed to us by the Constitution of the United States.
Name of Company is familiar with federal court decisions and the ruling of the Supreme Court of the United States in Marshall v. Barlow’s Inc. that all warrantless searches or inspections of company property, or any portion thereof, conducted pursuant to Section 8(a) of the Occupational Safety and Health Act of 1970 are unconstitutional. Therefore, our Company chooses to exercise its constitutional rights and will not permit, nor is any employee of this Company authorized to permit, any search or inspection by any representative of the Occupational Safety and Health Administration unless conducted pursuant to a valid warrant.
Name of Company does not believe that probable cause exists for an OSHA inspection of its property. In the event that the Secretary of Labor believes otherwise and decides to make application for inspection warrant, our Company hereby requests that it be given advance notice of such application so it can have an opportunity to oppose the same.
This statement of policy has been reduced to writing and is being delivered in hand to each OSHA representative seeking to make a warrantless search of our property so that OSHA will be officially advised of everything stated herein.