The Occupational Safety and Health Administration recently made a change to its inspection practices that should lead employers to keep eyes on the sky above their work sites. The safety watchdog late last year issued an under-the-radar memorandum announcing that its inspectors now have the authority to use camera-carrying Unmanned Aircraft Systems – commonly known as drones – to collect evidence during workplace inspections when necessary.
OSHA inspectors have the right to not only conduct in-person inspections of workplaces but also, under certain circumstances, to deploy remote-controlled machines in the skies above to identify safety violations. While we would all agree that workplace safety is of the utmost importance, the use of drones to inspect a work site raises new concerns for employers — and should lead them to prepare for this 21st-century development.
Privacy concerns are all the buzz
The first thing that all employers should be concerned about regarding the use of drones is ensuring that they don’t cross the line and violate the Fourth Amendment right to privacy and the prohibition against unreasonable government searches. Employers always have had the right to object to an overbroad OSHA inspection, and this remains the case when we’re talking about drones being used as part of that inspection.
There is good news. According to the OSHA guidance memo, inspectors must “obtain express consent from the employer” prior to using a drone, so there’s no need to be concerned about a sneaky spy mission being pulled off without permission. In fact, if an employer objects to the drone’s use, then the aircraft won’t fly, according to the guidance memo. This guidance is intended to ensure that the OSHA inspection doesn’t violate the Fourth Amendment.
If an employer objects to use of a drone, the agency always has the option of seeking and obtaining a search warrant permitting its use. Moreover, trying to put limits on where OSHA may look during an inspection raises the risk that an employer could make itself a target for multiple and frequent future investigations. Sending an OSHA inspector away from one’s doors — or, in this case, one’s airspace — certainly raises suspicions. After all, if an employer has nothing to hide, why wouldn’t it let a drone circle overhead? At least that’s the way the government might view the matter.
For that reason, it might be better if an employer permits OSHA to launch a drone inspection but then works with the investigators to reasonably limit the inspection. An employer is always permitted to grant an OSHA inspector entry to its work site for a “limited inspection,” putting reasonable boundaries on where that search will be conducted to match the underlying reason that led the agency there in the first place. For example, if OSHA came to your workplace responding to an employee complaint, it stands to reason that you could work with the investigator to ensure that he or she search only the areas of your workplace subject to the complaint, and object to the inspection expanding beyond that.
Moreover, some employers don’t know that they can always limit certain aspects of inspections. For example, one can ask the investigator to not take pictures of certain areas of the work site (if they reveal trade secrets, for example), or ask the investigator to refrain from questioning employees during working hours. But remember, if the inspector spots a hazard in “plain view” while walking around the work site — or using the drone camera — the inspection could still be broadened without the employer’s further consent.
Who’s the queen bee?
You already might be puzzling over another concern raised by the use of drones at a specific work site, and that’s determining who OSHA considers to be “in charge” at a multiple-employer location. Remember, OSHA itself says that an employer must provide express consent before any drone activity can occur. But what happens when several employers are operating at the same location at the same time?
For instance, at construction sites, it is common for several subcontractors to be working under a general contractor. Can a general contractor give consent for drone use at a work site with multiple employers? Who actually owns the airspace above that work site and therefore has authority to grant consent? And what happens to the video after an inspection? Will it be obtainable by competitors or unions through a FOIA request?
Unfortunately, there aren’t many clear answers as of yet. Under OSHA’s Multi-Employer Citation Policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard, so we at least know that more than one business may be liable for any final findings. But the issues regarding who can (or should) grant consent have not yet been sorted out by the agency or the courts. For now, the best policy seems to be opening a clear line of communication with any counterparts at a shared work site and getting on the same page before any inspection requests occur.
What can be done now?
No doubt we will see increased use of drones during OSHA inspections in the coming months and years, so begin to address the issue now. Here are a few tips:
Prepare a response strategy. Just as a written strategy should be prepared for an OSHA in-person inspection, the same applies to drone inspections. Designate an authorized representative to sit next to an OSHA drone crew on the ground while the machine is buzzing overhead, much like accompanying an OSHA inspector during a walk-around inspection.
Don’t be afraid to limit the inspection. Participate in the drone flight planning and don’t allow drones over the work site if there is disagreement with the flight plan.
Be informed. Educate employees on these new developments to ensure key personnel at least know enough to prepare for future OSHA drone inspections. If an inspector shows up at your door requesting to conduct a drone inspection, know your rights.
Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law.