In early 2018, the US Occupational Safety and Health Administration (OSHA) ordered each of its ten regional offices to create an unmanned aircraft (drone) program, and conducted at least nine facility inspections using drones with cameras over the course of the year. But most employers remain unaware of OSHA’s use of drones and the extent to which they may have to adapt to this new inspection method, given that inspections by drone are likely to become increasingly common in the coming years. Here are some tips for employers on how to prepare for an OSHA inspection involving a drone.
1. OSHA must obtain employer consent before flying a drone through their facility…for now.
Employers should know that, per OSHA’s policy, an OSHA inspector cannot use a drone during a facility inspection without the employers’ explicit consent. Because a drone is more likely to record citation-worthy safety violations in plain sight than a human inspector with a handheld camera, an employer who is caught off-guard by an OSHA inspector’s request to use a drone can and likely should deny drone use. However, attorney Megan Baroni of the Robinson & Cole law firm says that despite the fact that employers have this right, “the question remains as to how the scope of an investigation might change if an employer refuses [drone access].” Additionally, a memo issued by OSHA to its staff in early 2018 revealed that OSHA is exploring the option of obtaining a Blanket Public Certificate of Waiver or Authorization (COA) from the Federal Aviation Administration (FAA) to operate drones nationwide. Baroni says it is unclear whether the agency’s policy of requiring employer consent to drone inspections will be affected if OSHA succeeds in obtaining a COA, so employers should prepare for drone inspections just in case.
2. Plan flight paths prior to a potential drone inspection.
Baroni and John S. Ho, an attorney with the law firm of Cozen O'Connor, suggest that employers create designated flight paths through their facilities to minimize the chances of drones catching safety violations in plain sight for which OSHA is legally allowed to write citations. Most facilities already have routes in place for human inspectors, but employers should keep in mind that drones are more likely to record the entire path from the facility entrance to the accident site. With predetermined flight paths, employers can prevent the inspection drone from “wandering” around and find more citation-worthy violations.
3. Ensure that OSHA shares any photos or videos taken by a drone during an inspection.
Baroni and Ho also agree that the employer should obtain any inspection photos or videos taken by an OSHA drone during an inspection. Common practice already involves having an authorized company representative take any photos the inspector does, effectively creating an identical inspection record that can be used as reference for future inspection preparations. Obviously it is not possible to do this with a drone, so Baroni and Ho suggest addressing the issue of sharing photos and video before providing consent to a drone inspection.
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