Excerpts
Una Jefferson: How are drones being used these days for health and safety inspections in the United States?
Adele Abrams: Well, this is definitely a new area that is being explored by the US government, both on the occupational safety and health side and as well as on the mine safety and health side. To lay a little bit of foundation, the utilization of drones is something that in the last five years has become increasingly popular on a voluntary basis by employers, especially those in high hazard industries because it simply gives them another set of eyes in areas where it might be hazardous to send their own employees to try to check on various conditions whether you are say in the blasting industry and you need to go in and make sure everything’s done properly, before you send personnel in there or if you are examining the ground conditions, in a pit or a quarry or perhaps on a construction site. And it’s also a way that employers have used to be able to get a set of eyes up to the roof areas to see if there are any hazards detected before people are sent up there or even to spot check to make sure that the people are using their personal protective equipment rather than a supervisor running up and down. What we have going on right now is OSHA and MSHA learning from the employers that this has become something of a commonplace activity and that there is some merit to it. So they’ve decided to take a page out of the employers book and now use this for enforcement purposes.
Una Jefferson: All the uses that you mentioned have to do with having another set of eyes on hazardous situations that might not be easy for an inspector to view. OSHA published a memo last year that talks about their drone use policy. That policy says that they’re currently using drones for areas where it’s too hazardous to conduct inspections normally. Do you have a sense of whether drones will continue to be used in these types of hazardous situations or might they be used more broadly for inspections?
Adele Abrams: As the saying goes, this could be viewed as the camel’s nose under the tent. It certainly is a legitimate justification to use them in this manner for ultra hazardous areas or to get a set of eyes into areas that it might be difficult to access. I was recently at a presentation where this was discussed by a high level representative from the US Department of Labor. And the explanation that was given for the initial utilization was that this is protecting the OSHA inspecters and the MSHA inspectors because they are not having to put themselves in a zone of danger in order to determine whether there are hazardous conditions that need to be addressed. And you have to realize the highest priority OSHA inspection is that of an imminent danger. If OSHA sees a condition that they think is highly likely to cause the death or serious harm to her worker, they need to act quickly, they’ll open up an inspection immediately and withdraw workers if necessary. MSHA does the same type of thing in an imminent danger setting as well. This is a way though that, they can observe things that might indeed be an imminent danger, in a novel way. Things that they normally would not have access to. And so that is a little bit of something to give you pause is that the historical view of OSHA could look at anything that’s in plain view as they say through the fence line. As long as they’re standing outside the fence without a warrant, if they see something that constitutes a violation or gives them a concern, then they can open up an inspection event at that point and the employer can seek a warrant if they desire. My point is now this is extending that fence line upwards into the airspace over your building. And this is certainly not something that was envisioned at the time that the Occupational Safety and Health Act was created in 1970.
Una Jefferson: The current OSHA policy is that an employer has to express consent before a drone inspection. Do you think that once they have given that consent, the use of a drone could change the scope of an inspection?
Adele Abrams: Well it certainly can because again, it can get where inspectors perhaps cannot have easy access. OSHA has what’s called the General Duty clause. It’s a gap filler. So if there’s not a specific standard on point, but the inspector sees something that they recognize as a hazardous condition and in their view, the employer should have recognized that as presenting a serious hazard that could cause death or serious harm to workers at that point they can issue a citation and that can be issued even as a willful violation. So the penalties on those just went up in January to $132,000. So that’s quite a bit of money for OSHA being able to get into an area and then impute knowledge of that hazard back to the employer. This is the slippery slope. OSHA very easily can say if we’re able to get a drone in there to inspect and make sure that it’s not going to present a hazard to workers, the employer could also buy a drone and operate it in the same way to expand the scope of your inspections. Another angle to it is if OSHA is going to be expecting the employer to match them technology for technology and to impute that into, for example, the construction standard that requires you to do regular inspections of the work site. Is that going to now be expanded to include any place a drone could reach? So we may be on the cusp of a brave new world here in terms of OSHA enforcement ending up being somewhat technology for a thing on the side of the employer.
Una Jefferson: Because this new technology is available will it raise the bar for what is expected of employers.
Adele Abrams: Sure. Because it’s market ready, it’s something that can detect hazards, especially something that could present a catastrophic situation. There may be an inference that this is something that is feasible for an employer to do. And if they were aware that they have this hazard this would be an option other than putting employees in the zone of danger. I’m thinking for example of impoundments. I had a case a few years ago where after very heavy rains an impoundment failed and the material fell down and it ended up burying two workers who were in pieces of heavy equipment, excavators and such, and they passed away and it took a week to get them out. One of the things that was suggested was better monitoring of that impoundment area could have indicated the potential failures. Drones were not implicated at that time, but this is a few years later, they are much more commonplace. It is something that perhaps an employer would have a duty to do knowing that they have conditions that could present a failure.
Una Jefferson: You mentioned earlier that drones might widen the scope of inspection because employer consent is required. Consent might not necessarily be a yes or no. To what extent will employers have the ability to help determine the flight path of a drone? To what extent will they be able to be involved in planning the inspection with OSHA?
Adele Abrams: At present as you said, OSHA says that they will require consent. OSHA also does not have warrantless search authority. So even for a regular inspection, an employer can require OSHA to get a warrant. Before anybody gets too excited about that, these are administrative warrants. OSHA does not have to go before a judge and plead their case like you see in the crime and punishment shows on television. Typically when my clients have requested a warrant, OSHA has turned it around in a hot New York minute and then are back there sometimes later the same day or at most the next morning. At that point they are a bit antagonized. Usually if one inspector came originally when they come back with the warrant, they will come in pairs, twos or threes and you’re going to have a much more deep dive of an inspection. So when we talk about employer permission to give to allow access with the drones, it’s true, you can deny it and OSHA says in their guidance they will not at this time seek a warrant. If you say no, no means no. Does that mean that the rest of your inspection is going to go a little more poorly than it might under other circumstances. If past is prologued, I would say that is probably going to be the case because at a minimum you’re not going to get a good faith reduction probably, because they score things that way. MSHA has some similar things where they look at what they call operator tactics. If an employer is going to consent, what you need to do is set those parameters as you’ve suggested. You can find out what the scope of the inspection to begin with. If it is supposed to be under a national emphasis program, you can tell them to limit it to the processes or the equipment that might be covered under that emphasis program. The problem is even when they come in on an NEP inspection, as they call them, anything that’s in plain view that they recognize to be a violation, becomes fair game. And for that matter, if they come in on a safety inspection and they hear loud noise levels or they see silica dust in the environment that is enough for them to open up a new health inspection event. Because it’s something in plain view. So you can limit the scope of what they can do with the drones but how well are you really going to be able to limit that? What is it going to capture that might be outside the scope of that emphasis program. Now, if it is a wall to wall inspection to begin with, you can ask them to limit the scope of the drone use. You’re not going to be limiting the scope of their boots on the ground inspection however, because it was wall to wall and you don’t seek a warrant or they get a warrant, they’re going to go where they want to go under those circumstances.
One thing that is critical though is if you have any proprietary information or processes, confidentiality, trade secret type of things that you do not want captured on video, you need to let them know that. And if that is the area that they want to use the drones on, you may have a little bit of a standoff, but again, at a minimum, if you acquiesce and let them go forward and use the drones over your proprietary processes, you need to let them know that these need to be marked as confidential. That way, the release of that drone footage will be shielded under the Freedom of Information Act because trade secrets and confidentiality are one of the categories for denial. This is a potential that people aren’t really thinking about. If they capture that information on video, your competitors can do a Freedom of Information Act under US law and get copies of that drone footage to use perhaps to reverse engineer your processes.
Una Jefferson: What about MSHA. They’re not doing inspections with drones yet, but you mentioned that they have drones now. How do you think this might play out given that they do have warrantless search authority.
Adele Abrams: MSHA is sister agency to OSHA and two things that distinguish it are the strict liability and warrantless search authority that they have. The other thing that is distinct, is that MSHA has mandatory inspections. MSHA will inspect every surface mine twice a year and every underground mine four times a year. Now as a practical matter right now, drones could not really be used safely by the agency or by a mine operator in an underground environment, except in very limited ways. There are some underground stone mines, for example, some of the underground salt mines have very high ceilings as they call them. And those are probably high enough where either MSHA or a mine operator could fly a drone around, but obviously the lower coal mines, there’s no way they could utilize that.
What MSHA has said is that, so far only their technical support personnel have drones and, they’re going to be getting trained on those. They are going to be studying the applicability of them, the way to optimize the use of drones, but the idea is eventually to use them in mine inspections. And that is going to, as I said, open up a bit of a different door here because the mine operators cannot require MSHA to get a warrant. And in addition, section 103A of the Mine Act, actually allows MSHA to issue citations against anybody who impedes their inspection or investigation. They are allowed to gain access in pretty much any way they want. But there’s a couple of other aspects to this, which is, the privacy of your workers and also the statutory rights that employers have to accompany the inspectors and also the workers reps. The union workers representative has the right to accompany the inspector as well. If the inspection is carried out by drone, how are those representatives going to be able to meaningfully participate in that inspection?
Una Jefferson: It sounds like this is something that still needs to be hashed out between employers and unions and MSHA and OSHA. Do you have a sense of what this might look like five years down the road when drones may have become an established part of inspection processes? How do expect it might look?
Adele Abrams: One of the aspects is going to be this privacy and surveillance issue. Is this going to be viewed as an unconstitutional entry, contrary to your privacy rights especially in those environments where it’s being able to be done without a warrant, which would be at 12,000 surface mines in U.S? The government is going to be potentially capturing them on video without their knowledge or consent. And then this information can get into the public domain if it is not subject to one of these confidentiality things. While employees already surrender a certain expectation of privacy because a lot of employers are using surveillance cameras in the workplace. It’s a little bit different when the federal government is doing it. Let’s remember also there are 22 states in the US who run their own OSHA programs in lieu of the federal government. And so if the state actors start getting into this, this is going to raise some additional implications potentially under state privacy laws that may be more protective of workers’ rights than we have at the federal level. So my prediction looking five years in the future, yes both OSHA and MSHA are going to be utilizing drones more frequently for enforcement purposes. The technology may advance even more where these things will be the size of a pack of playing cards and no one will even know that it’s zooming around up there. I think they’re also going to have to really scrutinize the protections that they have, not only for the safety of the inspectors and I get that that is a motivating factor, but also for the workers. OSHA right now says they won’t fly these over anybody’s head, but of course if it’s a wide range camera it can still capture people who are outside without being directly under the path of it. MSHA has no policy on this. I encourage them to take a look at what OSHA is doing so at least you have the agencies somewhat in lock step with each other because so many operations in the US now are under both OSHA and MSHA jurisdiction and it’s just going to engender more confusion if there are two different sets of rules within the US department of Labor that employers need to be cognizant of in terms of the governmental use of drones at their facilities.
I think it’s an interesting topic. It’s certainly going to be an evolving one and almost certainly it will engender some litigation, in sorting out the fine points of this. But ultimately I think it is a good tool that can improve safety. I encourage employers, where it’s feasible to use these, already to augment their existing inspection processes. But the devil’s in the details when it comes to the government using that information against you in court.
