|
|
| Promotion News |
|
|
| Dos and Don'ts Regarding OSHA and Drones |
|
The following article is being reprinted with permission from Adele Abrams, Esq., CMSP, The Law Office of Adele Abrams.
Look, Up in the Sky. It’s a Bird, It’s a Plane - It’s OSHA!
In December 2018, it was revealed via a Freedom of Information Act (FOIA) request that on May 18, 2018, the Occupational Safety & Health Administration (OSHA) issued an internal memorandum to its regional administrators directing the procedures for the use of “Unmanned Aircraft Systems” (UAS) – commonly referred to as “drones” – during its inspections.
The memorandum has now been in effect for a few months, but very little is known about its practical impact on enforcement activities, although they have reportedly been used so far on nearly a dozen worksite inspections. In order to protect yourself from unauthorized searches in violation of the Fourth Amendment to the U.S. Constitution, it is important to know the do’s and don’ts when OSHA attempts to surveil your worksite.
It is critical to remember that OSHA does NOT have warrantless search authority. As a practical matter, it may not be wise to demand a warrant whenever OSHA shows up, because it will antagonize them, and also reduce the amount of discount you can receive on citation penalties. But there are certain situations where requiring them to obtain a warrant is justified, such as in a fatality case where you need to get your response team on site (safety officer, counsel, technical experts or manufacturers).
OSHA does not need to go to any court to get a warrant – this isn’t Law and Order – and they have administrative warrants already issued in bulk back at their office. But the warrant request will slow down the train by anywhere from a half-day to a full-day. You need to decide if the risks and benefits are worth it.
Even without a warrant, you can limit the scope of an OSHA inspection depending upon the type: a hazard complaint-based inspection typically only allows OSHA to look at the equipment or area at issue. However, even during a limited scope inspection, if OSHA observes a violation “in plain view,” it may justify them expanding the scope of the inspection. So if a drone is used, this makes a larger portion of your worksite available to them. If the inspectors observe something through a fence or from outside your property that is a problem, this can justify opening an inspection event, particularly if the condition presents an “imminent danger.”
Imminent danger inspections are OSHA’s top priority, even surpassing fatality or injury case responses. Normally, these plain view inspections have been triggered by OSHA driving by a facility or worksite and seeing workers through a fence, in a roadway trench, or up on a roof or billboard working in an unsafe manner. For the warehousing or logistics sector, this could include observations in an outdoor storage or transport area, concerning the stability and height of stacks, the operation of forklifts, loading dock hazards, and use of fall protection and other PPE.
OSHA is currently exploring the option of obtaining a blanket Public Aircraft Operator (PAO) authorization, which would allow it to “fly missions that meet the governmental functions listed in the Public Aircraft Statute. They also have the option of seeking civil operator status under the Federal Aviation Administration’s civil rules. It appears that the first route may be limited to federal OSHA inspections, whereas state OSHA agencies (in 22 states) would need to pursue the civil operator route.
While FAA blanket approval of OSHA’s use of drones is pending, the agency will require its regional administrators to have a remote pilot in command who passed an FAA test and obtain a UAS-rated license. All UAS will be registered, and logbooks kept (which may be accessible via a FOIA request, but that is not certain). More specifically, drones that will be used for OSHA inspections must weigh less than 55 pounds and be registered with the FAA if the UAS weighs more than 8.8 ounces. A regional representative will determine whether requests for UAS use and mission demands can be successfully fulfilled, including a cost/benefit analysis and a hazard assessment.
Critically, at this time, OSHA says it will “obtain express consent from the employer prior to using UAS on any inspection.” Personnel on site must be notified of the aerial inspection prior to launching a UAS. The OSHA representative operating the drone must keep a visual line of sight with the UAS, only operate it during the day (sunrise to sunset), and flight speed cannot exceed 100 mph. The UAS must yield right of way to manned aircraft, such as planes and helicopters.
The UAS also cannot operate more than 400 feet above the ground, except when within 400 feet of a structure, and then it can hover up to 400 feet above the top of the structure. This allows for inspection of rooftops, for example, to see if skylights have proper covers when workers are exposed or to observe work performed by mechanical contractors in those areas. Drones are intended to be mainly used for inspection of areas that are deemed unsafe or difficult for inspectors to reach on foot.
Finally, OSHA says that the UAS will not operate over any persons not directly participating in the operation unless they are in a covered structure, or inside a stationary vehicle that can provide protection from a falling drone. Each UAS inspection will include at least three team members, tripling the sets of eyes looking at your workplace for hazards!
The OSHA memo also details the drone “deployment” kit, which includes two-way radios, binoculars, laptops and smart phones, and UV lenses for the UAS camera. After obtaining employer consent (similar to asking if they can videotape an inspection), and notification of personnel, OSHA will evaluate site-specific hazards such as cables, antenna and vehicles, perform a JHA of the hazards and mitigation for use of UAS on the specific worksite, determine a flight plan (in graphic form, such as a sketch), establish radio communication if needed, brief the team, verify with local law enforcement to ensure compliance (some areas are forbidden to have UAS operate for national security or other reasons, such as being too close to an airport). Then the agency inspection will commence using UAS.
So, is the use of drones by OSHA something to be concerned about? There are a number of factors to consider. If the employer denies the use of UAS, will they return with a warrant to use them anyway - and risk becoming a target for a harsher inspection, a “bad faith” employer who will be denied 10% of the potential fine deduction (OSHA maximum penalties just rose to $132,598 on January 23, 2019)?
Another concern is that OSHA drones will be shooting videotape, which can capture trade secrets, as well as employees caught in the act of doing something that constitutes a legal violation of OSHA rules. OSHA also cooperates with the EPA, so if the drone captures something in the environmental area that is improper (e.g. leaking oil drums in the back of the property), they can share the video and trigger an EPA visit. OSHA’s memo also fails to detail how the information gathered might be protected, and with whom it would be shared. Will employees be concerned about being captured on drones without their consent, and do you need a policy?
While there may be more questions than answers at this point about the practical impact of drone inspections, it is wise to educate your supervisors and workers now, so that if an OSHA UAS team shows up, everyone will know their rights. You can also choose to adopt a policy in advance on whether a warrant will be required at all, only for UAS inspection activities, or for all OSHA inspections. The choice is yours - at least for now!
|
|
|
|
|
|
