Trent Cotney, Cotney Construction Law, LLP
Do you hear that buzzing on your jobsite? Despite your flawless work, that buzz is not the owner commenting
on how well you installed their new roof. 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 (DOL) released an internal memorandum to the public in 2018. The memo expressed the DOL’s approval of Unmanned Aircraft System (UAS), or drone, usage by the Occupational Safety and Health Administration (OSHA) during inspections. The memo explained that while OSHA is working on obtaining a Blanket Certificate of Authorization (COA) from the Federal Aviation Administration (FAA), the DOL will allow OSHA to utilize drones in construction inspections provided that operations comply with the civilian operator rules codified at 14 Code of Federal Regulations Part 107. When OSHA obtains the Blanket COA, it will be able to operate a nationwide drone fleet. As of the time of
this writing, FAA imposed parameters of OSHA’s COA fleet are yet to be determined. In the interim, OSHA will
continue operating pursuant to Part 107.
Overhead observations of a jobsite by a federal agency have raised Fourth Amendment unreasonable search
concerns. To address those concerns, prior to utilizing a drone a Compliance Safety and Health Officer (CSHO)
must obtain express consent from the employer whose jobsite is being inspected. There is no requirement that
OSHA obtain consent from the project’s owner as well. An employer may refuse a CSHO’s entry to the jobsite
and demand the CSHO obtain an administrative warrant before conducting an inspection. Unfortunately for employers, OSHA’s standard to obtain a warrant is lower than that required for a police officer to search private property. Typically, the CSHO will get his warrant and return to the jobsite in a hostile state. The verdict is still out on whether the same process would apply to an employer’s refusal to allow OSHA to conduct drone operations.
If the employer consents to drone usage, OSHA must comply with administrative procedures and statutory
rules. Each OSHA region must appoint a Regional UAS Program Manager to oversee all drone activities within
their region and ensure 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 pounds, and be flown by a certificated
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: (1) the RPIC; (2) a Visual Observer (VO); and (3) a Safety Monitor. The VO must be an OSHA employee and will typically be the CSHO under whose authority the inspection is conducted. Regardless of if a drone will be used, employers should request that OSHA personnel present their credentials prior to all
inspections.
While the RPIC has the final say on whether a flight takes place, 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 feet above the ground unless it is kept within a 400-foot radius of the building being inspected. In that situation, the drone may be flown up to 400 feet above the structure’s highest limit.
In addition to the FAA rules, the state of Florida has additional drone laws. The “Freedom from Unwarranted
Surveillance Act,” codified in Florida Statute § 934.50, regulates the use of drones by governmental entities in Florida. Much like the federal guidelines, Florida requires that governmental personnel, such as code compliance officers, obtain written consent prior to conducting investigative drone operations. The statute explains that using a drone to capture images without express consent may violate a “person’s reasonable expectation of privacy,” entitling that person to a civil claim against the governmental entity and preventing the admission of illegally obtained images in legal proceedings. Other rules also apply in certain Florida localities. For instance, those operating drones recreationally within five miles of Tampa Executive, Tampa International, Peter O. Knight, or Plant City Airport must complete an online form. In Miami, drone operations are prohibited within a half-mile radius from the major sporting stadiums and a permit must be obtained for many drone activities in the city. Additional permitting is also required in the City of Orlando.
The idea of having a CSHO dominate the airspace above your project may be worrisome. But the fact remains, 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 roofers 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 ceramic tiles 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 or has already done so, you should contact a qualified OSHA attorney to assist you and talk through your options.
Disclaimer: The information contained in this article is for general educational information only. This
information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Cotney Construction Law is an advocate for the roofing industry, General Counsel of FRSA, NWIR, TARC, TRI, RT3, WSRCA, and several other local roofing associations. For more information, contact the author at 866-303-5868 or go to www.cotneycl.com.
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