It is not uncommon to see drones flying overhead in public spaces. However, the increasing presence of drones over worksites could cause employers across the country to be concerned—especially if an OSHA inspector is operating the drone. Inspections involving the use of drones will likely be on the rise now that OSHA has formalized its internal drone policy.

Last year, OSHA issued a memo formalizing its use of drones for inspection activities. According to news reports, OSHA used drones in a number of inspections during 2018. While most of these involved post-incident inspections where conditions were deemed too dangerous for inspectors, the benefits to OSHA of incorporating drones into its inspections likely means that the use of drones will increase as it conducts inspections across the country. This especially could be the case at construction sites where OSHA may feel the use of a drone is safer than sending inspectors into an active site or to significant heights.

In its memo, OSHA states that it can use drones for a number of purposes, including inspection of inaccessible or unsafe areas, for technical assistance in emergencies and during compliance assistance activities. The memo sets forth the parameters that OSHA must follow when using drones, but it also indicates that the agency is exploring the option of obtaining a Blanket Public Certificate of Waiver or Authorization (COA) from the Federal Aviation Administration to operate drones nationwide.

The memo states that OSHA must obtain express consent from an employer prior to using a drone during any inspection. On-site personnel must be notified of the inspection to ensure cooperation and safety. When working in an area with other federal agencies and employers, the memo states that OSHA will coordinate with all parties onsite prior to using a drone for an inspection.

Despite OSHA’s memo, employers, particularly those in the construction industry, have been left with questions. For instance, while the flight report and any data collected by the drone becomes part of the inspection case file, it is not clear when and how an employer can obtain a copy of such data. Also, will competitors or unions have access to such data through a Freedom of Information Act request?

Furthermore, as with a typical ground inspection, the employer is entitled to have a representative accompany the flight crew during a drone inspection. What is not clear, however, is how employers will accomplish the concurrent collection of evidence. It is unlikely that an employer will be permitted to fly its own drone alongside OSHA’s drone.

Other concerns involve the question of who OSHA will consider to be “in charge” at a multiple-employer worksite, as most construction sites at some point in time will qualify as multiple-employer worksites. As stated above, OSHA’s guidance memo requires express consent from an employer prior to drone use. Under OSHA’s Multi-Employer Worksite Citation Policy, more than one employer may be cited for a hazardous condition that violates an OSHA standard.

At construction sites, it is common for several subcontractors to be working under a general contractor. It is not clear who OSHA will recognize as an employer for purposes of providing consent to use a drone.

Perhaps most concerning is the fact that OSHA’s use of drones has the potential to expand its violation-finding capabilities during any inspection. Drones allow OSHA a bird’s-eye view of a site, expanding the areas that can be easily viewed by an inspector. While most inspections can and should be limited in scope, OSHA can cite employers for violations that are in plain sight. Employers must consent to the drone use, but the question remains as to how the scope of an investigation might change if an employer does not consent. In addition, it is unclear if that policy will change if OSHA is granted a Blanket Public COA from the FAA to use drones nationwide for inspection purposes.

Ideally, an employer and OSHA will come to an agreement before the inspection begins covering the specifics of the flight plan, the presence of an authorized employer representative monitoring the drone’s operation and an agreement that all data will be promptly shared. However, achieving these goals will likely take preparation and planning.

Employers may want to give some thought to preparing an OSHA drone strategy plan before an OSHA inspector arrives. Some concepts to consider in such a strategy may include:

• whether drones can be safely flown above a worksite without causing damage to equipment or processes;
• how to best be involved in the development of the flight plan and acquire copies of any collected data;
• who will be the designated authorized employer representative to accompany an OSHA drone crew on the ground;
• who will decide for the employer if the drone inspection will proceed and under what restrictions; and
• who will request to review the OSHA inspection team’s credentials, including the drone pilot’s certifications and flight route before any drone operations begin.

Prior planning will help to minimize the surprises that could arise if OSHA shows up at a worksite with a drone. Most importantly, remember that express consent is required.