Construction Law: It’s a Bird, It’s a Plane, It’s OSHA?

OSHA Using Drones in Construction Inspections

by Dillon Fulcher, Cotney Construction Law

 

 

 

 

 

 

 

 

(Editor’s Note: Dillon Fulcher is an attorney at Cotney Construction Law with extensive experience on a range of construction and related matters. Cotney Construction Law is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association. Fulcher can be reached at (866) 303-5868.)

 

 

Do you hear that buzzing noise on your jobsite? Despite your pristine work, that buzz is not the owners commenting on how well you installed their new thermoset membrane. It also doesn’t seem to be vibrations coming from your workers sinking stitch screws into a new metal roof. Then, what is it? Well, in the year 2019 and beyond, that buzz could be an OSHA inspector’s drone zipping by overhead.

In response to a Freedom of Information Act request, the Department of Labor released an internal memorandum to the public in 2018. The memo expressed the Department of Labor’s approval of Unmanned Aircraft System (UAS), or drone, usage by OSHA during jobsite inspections. The memo explained that while OSHA is currently working on obtaining a Blanket Certificate of Authorization (COA) from the Federal Aviation Administration (FAA), the Department of Labor will allow OSHA to utilize drones in construction inspections provided that such operations comply with the civilian operator rules codified at 14 Code of Federal Regulations Part 107. If, or rather when, OSHA obtains the Blanket COA, it will be able to operate a nationwide drone fleet. As of the time of this writing, the FAA’s imposed scope and parameters of OSHA’s nationwide COA fleet are yet to be determined. In the interim, OSHA will likely continue to operate drones pursuant to Part 107.

Understandably, overhead observations of a jobsite by a federal agency have raised Fourth Amendment unreasonable search concerns. To ensure Fourth Amendment protections, prior to utilizing a drone, a Compliance Safety and Health Officer (CSHO) must obtain express consent from the employer whose jobsite is being inspected. However, there is no requirement that OSHA must obtain consent from the project’s owner as well.

An employer may refuse a CSHO’s entry to the jobsite and demand that the CSHO obtain an administrative warrant before conducting an inspection. Unfortunately for employers, OSHA’s standard to obtain a warrant is significantly lower than that required for a police officer to search a property. Typically, the CSHO will get his warrant and return to the jobsite in a hostile state, warrant in hand. The verdict is still out on whether the same process would apply to an employer’s refusal to allow OSHA to conduct drone operations.

Nevertheless, if the employer consents to OSHA’s drone use, the operation must comply with administrative procedures and statutory rules. Each of the ten OSHA regions must appoint a regional UAS program manager to oversee all drone activities within their region and ensure that inspections are conducted in accordance with Part 107. Under Part 107, the OSHA inspection drone must be registered with the FAA, weigh less than 55 lbs., and be flown by a certified Remote Pilot in Command (RPIC) who has passed an FAA Aeronautical Knowledge Test. The RPIC may, or may not, be an OSHA employee.

If OSHA intends to conduct drone operations, employers should anticipate a team of at least three personnel to be present. Those persons are: the RPIC; a Visual Observer (VO); and a safety monitory. The VO must be an OSHA employee and will typically be the CSHO under whose authority the inspection is conducted. Employers should request that OSHA personnel present their credentials prior to all inspections, regardless of if a drone is going to be utilized.

While the RPIC will have the final say on whether a flight is conducted, the senior onsite OSHA official will bear the responsibility for the flight operations. Flights may only be conducted during the daytime and the drone may not be flown over workers without overhead protection. When operating, the RPIC, VO, or safety monitor must keep a visual line-of-sight with the drone at all times. Additionally, the drone may not be flown at heights greater than 400’ above the ground unless it is kept within a 400’ radius of the building being inspected. In that situation, the drone may be flown up to 400’ above the structure’s highest limit.

The idea of having a CSHO dominate the airspace above your project may be worrisome. But, the fact remains that drones are not going anywhere. Those in the construction industry should embrace the technology. Civilian model drone capabilities are quickly advancing. These drones will change the way roofing professionals do business. For example, new models of heavy-lift drones are capable of hoisting hundreds of pounds. Can you imagine no longer having to haul a pallet worth of asphalt shingles onto a roof by hand?

OSHA inspections strike worry into the heart of even the most seasoned project managers and superintendents. While your jobsite may be immaculate, an OSHA inspection is nothing to take lightly. If OSHA wants to inspect your jobsite, you should contact a qualified OSHA attorney to assist you and talk through your options.

 

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