In December 2018, a Freedom of Information Act (FOIA) request revealed that OSHA issued an internal memorandum to its regional administrators on May 18, 2018, to provide procedures for the use of unmanned aircraft systems (UAS), commonly referred to as drones, during compliance inspections. To date, no link to the document is publicly available.

Little is known about the memorandum’s practical impact on enforcement activities and results, although drones have reportedly been used on nearly a dozen worksite inspections so far. There may be a tension between OSHA's use of drones and protections against unauthorized searches in violation of the Fourth Amendment to the U.S. Constitution. This will likely be the subject of litigation in the future, particularly if done without consent or a warrant.

Drones Expand Definition of “In Plain View”

It is critical to remember that OSHA does not have warrantless search authority. As a practical matter, it may not be wise for an employer to demand a warrant whenever OSHA shows up, because it may create the perception that an employer is not acting in good faith (and eligible for certain penalty discounts). But in certain situations, requiring OSHA to produce a warrant may be justified, such as in a fatality case where an employer may need additional time to gather its response team (e.g., safety officer, senior management, counsel, technical experts).

Even without a warrant, an employer may limit the scope of an OSHA inspection depending on the type. For example, 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,” that justifies them expanding the scope of the inspection. If a drone is used, this makes a larger portion of the worksite available to inspection. If the inspector observes something through a fence or from outside the property that is an apparent violation, this can justify opening an inspection event, particularly if the condition presents an imminent danger, such as workers without fall protection or working in an unsupported trench.

OSHA’s reach in terms of “plain view” inspection abilities is expanding as the agency explores the option of obtaining a blanket public aircraft operator (PAO) authorization that would allow it to fly missions that meet the governmental functions listed in the public aircraft statute. OSHA also can seek civil operator status under the Federal Aviation Administration’s (FAA) 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.

OSHA’s Drone Procedures Defined

While FAA blanket approval of OSHA use of drones is pending, under its May 2018 procedures, the agency will require its regional administrators to have a remote pilot in command who passed an FAA test and has a UAS-rated license. All UAS will be registered and logbooks (which may be accessible via a FOIA request) will be maintained. More specifically, drones that will be used for OSHA inspections must weigh less than 55 lb and be registered with the FAA if the UAS weighs more than 8.8 oz. 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.

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 before a UAS is launched. The OSHA representative operating the drone must keep a visual line of sight with the UAS and only operate it during the day (sunrise to sunset). Flight speed cannot exceed 100 mph, and the UAS must yield right of way to manned aircraft, such as planes and helicopters.

In addition, the UAS also cannot operate more than 400 ft above the ground, except when within 400 ft of a structure, and then it can hover up to 400 ft 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 OSHA 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, as well as extra batteries and charging equipment. 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 job hazard analysis 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.

Drone Footage Could Expose Trade Secrets and Other Violations

When considering whether to provide consent, an employer must recognize that OSHA drones will be capturing video footage that could include trade secrets. That must be noted to prevent release of drone videos through an FOIA request. In addition, drone video may capture employees in the act of doing something that constitutes a legal violation of OSHA rules, which could be imputed to the company if an agent of management is involved.

OSHA also cooperates with the EPA, so if the drone captures something in the environmental area that is improper (e.g., leaking oil drums on a property), the agency 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, including through FOIA requests. If the memorandum is eventually published on the OSHA website, the agency may provide further clarification.

Adele L. Abrams, Esq., CMSP, is president of the Law Office of Adele L. Abrams P.C. She is a co-author of three ASSE books: The Safety Professional’s Handbook,Construction Safety Management and Engineering and Consultants Business Development Guide.