OSHA has been using drones with cameras to conduct at least nine inspections of employer facilities in 2018 after it obtained permission from the companies’ management to do so.
Earlier this year, OSHA issued a memo formalizing its use of drones for inspection activities. Because employers must grant the agency permission for it to conduct the flyovers of their facilities, the new practice ends up putting employers in an uncomfortable position, some attorneys note.
OSHA’s use of drones has the potential to expand its violation-finding capabilities during any inspection, they say. Drones allow OSHA a bird’s-eye view of a facility, significantly expanding the areas that can be easily viewed by an inspector.
While most inspections can and should be limited in scope, the fact remains that OSHA can cite employers for any violations it finds that are in plain sight, says Megan Baroni, an attorney with the law firm of Robinson & Cole.
“Employers must consent to the drone use, but the question remains as to how the scope of an investigation might change if an employer refuses,” she points out.
There is little doubt that this enforcement tool will see increased use in future years and businesses would be prudent to address the use of drones in their OSHA response strategy now, according to John S. Ho, an attorney with the law firm of the Cozen O'Connor.
“Until some of these issues become more fully developed and depending, of course, on the specific facts, drones may present a situation where the employer might consider going against conventional thinking and err on the side of withholding consent,” he suggests.