By A. Scott HeckerBrent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: On December 28, 2020, the Department of Transportation, Federal Aviation Administration, announced a final rule governing the “Operation of Small Unmanned Aircraft Systems Over People.” This new rule could lead OSHA to push for increased use of drones in its inspections.

OSHA inspections operate on the “plain sight rule”: anything the compliance officer lawfully observes during the inspection can be the basis of the a citation. But OSHA policy prohibits compliance officers from exposing themselves to hazards during inspections, often limiting their ability to climb ladders and otherwise observe conditions on towers or hard-to-reach places.

In recent years, OSHA has sought to remedy those limitations by photographing and videoing worksites with Unmanned Aircraft Systems (“UAS” or “drones”). OSHA’s enforcement policy concerning the use of UASs in inspections currently requires OSHA to “obtain express consent from the employer prior to using UAS.”  No regulation required employers to allow the use of drones, and many employers chose not to allow drones, citing safety hazards of drones falling on employees and other individuals near the worksite. However, OSHA has acknowledged that it has requested “blanket” authority from the FAA to operate drones in airspace across the country.

The FAA’s final rule amends 14 C.F.R. part 107 to “expand[] the ability to conduct operations over people, provided that the operation meets the requirements of one of four operational categories” described in a newly established subpart D, and represents “the next step in the FAA’s incremental approach to integrating UAS into the national airspace system.”  OSHA’s drone policy requires OSHA UAS Program Manages to comply with 14 C.F.R. part 107, including “apply[ing] and obtain[ing] approval for FAA part 107, subpart D, waiver when unable to operate under part 107 subpart rules.” Because the FAA’s new rule expands the circumstances under which drones can operate without a waiver or exemption, it could open the door for OSHA to change its policy and use drones more freely at worksites – without employer consent – if OSHA can deploy equipment complying with one or more of the new subpart D categories.

The FAA declined invitations from NIOSH “to join it in developing a performance-based, tiered approach for operations of small unmanned aircraft near people at worksites to minimize the occupational risks,” or “to collaborate with” OSHA, for now. But OSHA may seek to have a greater voice in partnering with the FAA to develop specific rules governing drone use in workplace inspections, particularly if the FAA’s “incremental approach” continues to allow for more flexible drone use.

Fewer restrictions on the usage of drones over people could provide one avenue for the enhanced enforcement efforts Seyfarth anticipates under a Biden Administration OSHA. Employers should remain mindful of this dynamic environment as the country transitions to a new year and a new president.

We have blogged previously about drones in the workplace. See Future Enterprises, Government Inspections, and Drones: Agencies are Using Drones More and More for Site Inspections, Send in the Drones: Transforming the Workplace through the Use of Drone Surveillance, and OSHA Publishes Interim Enforcement Response Plan for COVID-19 Inspections.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.