by Eric J. Conn and Kate McMahon
Conn Maciel Carey LLP is an IMA B2B Partner
We have for several years now heard about our military’s and intelligence agencies’ use of unmanned drones to conduct secret surveillance of our geopolitical adversaries and terrorists across the globe. We may even take comfort in the use of these high-tech mobile video cameras hovering above a terrorist hide-out to foil a plot against our country. What may be less comforting to employers in the U.S., however, is that OSHA seems to have borrowed the playbook from our spy agencies to assist their inspectors in conducting inspections of U.S. workplaces.
OSHA’s Drone Policy Memo
On May 18, 2018, OSHA issued an internal policy memorandum to its field offices, announcing that it has begun using Unmanned Aircraft Systems, commonly referred to as drones, to assist with worksite enforcement inspections, as well as for technical assistance and training purposes. For now, OSHA’s new drone policy requires “express consent from the employer” before a drone is deployed in an inspection, but that limitation is simply a policy decision that can change with the political winds blowing in Washington, DC, or ignored by the agency without explanation as we recently saw with OSHA’s “Look Back” policy for issuing Repeat citations.
OSHA’s drone policy memorandum, entitled “OSHA’s Use of Unmanned Aircraft Systems in Inspections,” expressed that the purpose of drone inspections is to assist OSHA compliance officers gather information at worksites that may otherwise be difficult or dangerous to inspect from the ground. The drone memo sets forth the general policies by which OSHA will operate drones. Specifically, the Pre-Deployment, Pre-Flight, In-Flight, and Post-Flight Procedures.
These procedures start with the designation of an OSHA Regional Unmanned Aircraft Systems Program Manager, who will ensure that all drone operations follow FAA rules and OSHA policy. The Regional Program Manager will oversee all inspections and coordinate requests for drone use. An approved request will require the assembly of a team composed of a:
- Remote Pilot in Command;
- Visual Observer (typically the compliance officer who is leading the overall inspection); and
- Safety monitor.
The memo also describes the FAA regulations that govern the deployment and operation of drones. Specifically, OSHA is required to adhere to FAA regulations as a Civil Operator, as described under the civil rules (14 CFR Part 107). One such FAA requirement is that the drone operator is required to develop and file a flight plan. The drone memo does not provide for sharing the flight plans with employers, but since the policy calls for obtaining employers prior consent, employers should condition consent on sharing a copy of the flight plan. Of course, the employer could push back if the flight plan reflects a broader scope than the intended scope of the inspection (e.g., it would fly over parts of a facility not relevant to an employee complaint that prompted the inspection). To ease its burden in using drones, OSHA may seek a blanket Certificate of Authority from FAA to operate drones nationwide.
Employer Consent… For Now
The key to OSHA’s drone policy right now is that OSHA’s use is supposed to be contingent upon employer consent, and of course, subject to all the other limitations OSHA faces for typical inspections, but also, subject to OSHA’s usual inspection authority. For example, as with a ground inspection, the employer is entitled to have a representative accompany the flight crew during an aerial inspection. What is less clear, however, is how employers will make the usual concurrent collection of evidence. OSHA has expressed that it will not share video or photos from the drone until discovery in a contested case, and sending up a side-by-side drone may not be feasible.
Of greater concern is how OSHA’s “plain view” doctrine will apply in the context of drone inspections. For a typical inspection, if OSHA observes a violative condition during that walk-around from a place they are permitted to be by the employer, that condition is fair game for a citation and/or an expansion of the inspection, even if it was not part of the original scope of the inspection. Aerial inspections with a drone can have the same effect of expanding the areas of a facility that fall within the plain sight of the drone. Including essentially a bird’s eye view of a worksite within the scope of “plain sight,” of course, increases the potential regulatory exposure to employers.
Even more concerning in that regard is our expectation that OSHA will either permanently jettison or conveniently ignore its self-imposed restraint to seek employers’ consent prior to using a drone to inspect a worksite. Federal courts have repeatedly upheld OSHA’s deviations from its own voluntarily-imposed inspection limitations, most recently allowing OSHA to ignore its proscribed “look-back period” for issuing repeat citations. The takeaway is that OSHA is not bound by its own self-imposed policy restraints. Once OSHA gets a taste for gathering a panoramic bird’s eye view of an employer’s facilities, it is not hard to imagine the agency will expand use of drones and forego the self-imposed employer consent requirement.
We already see compliance officers doing slow drive-bys or parking across the street from construction sites waiting for a regulatory violation to happen before even opening an inspection. Indeed, we hear stories from the field of OSHA inspectors posting themselves on the rooftop of a public building across the street from a workplace, and photographing or video recording work activities for hours before opening the inspection. Accordingly, we would hardly be surprised if the temptation of using drones to obtain aerial footage of employer worksites without employer knowledge is too much for the agency to withstand.
One restraint on OSHA in this matter may be the FAA rules which govern the operation of unmanned aircraft; particularly the Part 107 regulation requiring that those not directly participating in the operation take sufficient cover in the event of a drone crash. But if a drone can obtain footage of your workplace without actually flying over your workplace, OSHA may be able to skirt that regulatory issue.
Employer Should Develop Drone Inspection Policies
In the meantime, employers would be prudent to develop a plan of action in the event OSHA requests to conduct a drone inspection of their workplace. An effective plan of action for employers facing the possibility of a drone inspection should include:
- informing employees of the drone inspection (location and timing);
- designating proper personnel to accompany inspection teams; and
- identifying areas that are potentially objectionable to aerial inspection.
Employees must be informed of inspections and cleared away from any area over which a drone will operate. The employer representative designated to accompany the drone team should be properly trained and well-versed in employers’ inspection rights and OSHA’s inspection authority. Finally, to protect against intrusive observation that could result in trade secrets or other proprietary information being exposed or employer or employee privacy rights being violated, employers should clearly communicate to OSHA the specific work areas to which the consent to a drone inspection is limited.
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