(Taken from the NAHB Monday Morning Briefing Email Newsletter)
Over the last several years, the use of Unmanned Aircraft Systems — commonly called drones — has grown exponentially. It is predicted that by the year 2021 commercial drone use in the United States will expand tenfold. Drone use is regulated principally by the Federal Aviation Administration, which has registration requirements and sets operational rules to ensure safe operation.
With the emergence of wider drone use, OSHA has also stepped into the drone business, allowing the use of drones during worksite inspections for compliance assistance and for training purposes. The potential for OSHA to use drones in enforcement activities has raised concerns from home builders and other contractors.
OSHA Memorandum on Drone Use
On May 18, 2018, in a memorandum to Regional Administrators, OSHA set forth its policy related to the use of drones during inspections. The Agency stated: “[Drones] may be used to collect evidence during inspections in certain workplace settings, including in areas that are inaccessible or pose a safety risk to inspection personnel.”
In addition to OSHA having to comply with FAA and other regulations regarding drone use, the memorandum establishes “Recommended Best Practices” to be followed by OSHA regions when using drones.
The best practices are extensive and are designed to ensure the drones are flown safely and that employer and employee rights are protected by the use of the drones. Notably, in order for OSHA to use a drone in the course of an inspection, OSHA must receive consent by the employer to use the drone. OSHA must also notify all affected personnel on the job site that it will be using a drone.
These internal procedures will help ensure that OSHA is using drones only when absolutely necessary and not to attempt to open an inspection with the use of a drone without rigorous consultation with employers and employees.
In the Recommended Best Practices, OSHA also sets forth rigorous training procedures for those individuals who will be involved in drone operation. For those regions that will be using drones, a regional training plan must be developed to address initial training, recurrent training, and training on base tasks for the pilot of the drone and the secondary visual observer, who would also be required for any drone use.
How to Prepare
In the near term, OSHA’s use of drones during inspections will likely be limited to rare circumstances where the nature of the inspections is such that compliance officers cannot safely access particular areas (e.g., emergency response inspections, or accessing work sites located at significant heights).
“Home builders should still be aware that OSHA owns drones and has the capability to use them in the course of inspections, and should plan accordingly,” noted Brad Hammock, an attorney with the law firm of Littler Mendelson, P.C. in Washington, D.C.
To prepare, home builders should review OSHA’s drone memorandum and Recommended Best Practices. In addition, job site supervisors should be trained in the memorandum, in particular, that:
- OSHA by policy cannot use drones in the course of an inspection without employer consent, and,
- OSHA must notify any affected employees regarding the use of drones. Home builders should determine their approach to allowing OSHA’s use of drones in advance of an inspection and ensure job site supervisors are trained and knowledgeable about the approach.
Finally, home builders operating in OSHA State-plan States are encouraged to research how those states are using drones, if at all. Several OSHA State-plan States have also purchased drones and developed their own policies for drone use.