Can OSHA Use Drones to Inspect Your Site?

By Cotney - Attorneys & Consultants.

If you have ever experienced an Occupational Safety and Health Administration (OSHA) investigation or if you are preparing for one, you probably know that Certified Healthy and Safety Officials (CSHOs) have the authority to observe what is in “plain sight.”

Based on a new rule from the Federal Aviation Administration (FAA), what that phrase means may get trickier.

On December 28, 2020, the FAA introduced new guidelines to allow small drones to fly over people under certain circumstances. Does that mean OSHA could begin using drones for worksite inspections?

Understanding the Plain Site Rule

Based on the plain site rule, anything that CSHOs observe during an inspection can be used to issue a citation. OSHA does not allow CSHOs to expose themselves to any risk during a walkthrough, so by and large, they are not supposed to climb ladders or participate in other hazardous activities. They are expected to review only what is readily in front of them.

Over the years, CSHOs have taken to photographing and videotaping worksites covertly, sometimes from across the street with powerful lenses. More recently, they have begun using drones during investigations, but that required consent from the business owner.

How Drones Can Affect an Investigation

As a business owner, you might worry that if you do not allow the use of drones, OSHA might broaden the scope of your investigation, so you might comply. Many employers opt not to allow drones, stating that possible drone crashes are safety hazards on the worksite. However, if you do grant permission, you probably should ask for a flight plan before the investigation begins and request copies of the footage. But you must realize that a drone equipped with a camera will likely capture more hazards in plain sight than a traditional walkthrough will.  

For some time, OSHA has used drones only to inspect accidents on worksites that were too dangerous to enter. But more recently, OSHA has begun looking into the regular use of drones and requested that authority from the FAA.  

What the New Rule Might Mean

This new rule from the FAA allows operators to fly drones over people provided that specific requirements are met. However, this new rule does not mention exemptions or waivers, which could result in OSHA using drones more regularly—and without your consent.

What is the future of incorporating drones in an OSHA investigation? It is not clear now, but the FAA has provided an opening for OSHA to use drones more often and with less oversight.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Cotney – Attorneys & Consultants is an advocate for the roofing industry and General Counsel of NRCA and several other industry-related associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.