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By John Biggs
February 4, 2019
The Occupational Safety and Health Administration (OSHA) is charged with reducing worker injuries and fatalities on America’s jobsites. Construction work is an especially dangerous occupation, so it’s an industry that receives a lot of attention from the agency. Until recently that attention has come mostly in the form of on-the-ground safety inspections, but late last year OSHA began conducting jobsite inspections using camera-equipped aerial drones, raising some privacy concerns in the industry.
According to a 2018 OSHA guidance memo, the agency is now authorized to perform drone-assisted workplace inspections, however the memo specifies that any inspection “must obtain express consent from the employer” before it can begin. For now, this somewhat limits OSHA's ability to conduct drone inspections, but according to EHS Today, the agency is attempting to expand its reach in acquiring a Blanket Public Certificate of Waiver or Authorization (COA) from the Federal Aviation Administration (FAA), which would allow it to operate nationwide.
Questions Remain Unanswered
It’s unclear whether or how much OSHA’s authority to conduct such inspections would expand if granted the COA, but some attorneys are recommending site managers ready their sites in preparation for potential drone inspections anyway.
“Employers may want to give some thought to their facilities and whether drones can be safely flown without causing damage to equipment or processes,” Megan Baroni, an attorney with Robinson & Cole told EHS Today.
What also remains unanswered is what the impact would be if a company flat-out refused a drone inspection. It’s not out of the question that denying OSHA such a request could create an adversarial dynamic and make the company more of a target for future inspections or punitive actions by the agency.
Define Scope of Inspection Ahead of Time
When faced with an OSHA request for a site inspection, it’s advisable to work right alongside the agency during the process, attorneys say. Best practices say companies should define the scope of the inspection ahead of time, and gather the same data, photos and any other information being collected by inspectors. This gives the company being inspected an opportunity to follow along with each step of the process and see exactly what the inspectors are seeing, reducing the chances of being caught flat-footed.
When it comes to inspection by drone, however, some attorneys are recommending an abundance of caution.
“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,” John S. Ho, an attorney with the law firm of Cozen O’Connor told EHS Today.
Ho notes that even with a clearly defined scope of inspection, violations or hazards found in plain sight during a drone inspection, even unintentionally, are still fair game for citations.
As of last November, OSHA had used drones for nine inspections, predominantly at worksites where an accident had rendered it too dangerous for human inspectors. Those included a chemical plant explosion, a building collapse and an oil rig fire, according to Bloomberg Environment,
In spite of the at times push-pull dynamic that exists between safety inspectors and construction managers, studies have shown OSHA’s presence is effective in reducing workplace injuries and deaths. According to a 2012 study published in Science, which examined California’s division of OSHA, inspected workplaces reduced their injury claims by 9.4%, saving 26% on workers’ compensation costs in the four-year period following the inspection, and an estimated $355,000 in injury claims and compensation for paid lost work, EHS Today reports.
Impact Yet to Be Seen
Drones have become one of the most prominent next-generation technologies being deployed by construction professionals today. It will be interesting to see what if any impact OSHA's drone inspections will have on their adoption.
Privacy and liability concerns have been raised, and it's something the industry says it’s keeping a close watch on.
“We don’t have a position yet since this is relatively new and small scale,” Brian Turmail, vice president of public affairs and strategic initiatives for the Associated General Contractors of America recently told ConstructionDive.
“Our understanding is OSHA currently has two drones in operation. That being said, we are keeping a close eye on this and want to make sure that the technology is implemented in a way that ensures full accuracy.”
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