September 22, 2021

Volume XI, Number 265

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September 20, 2021

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Manufacturer Operations and Workplace Safety in the Age of Drones

A rise in more flexible Unmanned Aircraft Systems (UAS or “drones”) use as rules are relaxed and expanded could lead to operational and workplace safety changes in the manufacturing industry.

The Federal Aviation Administration’s (FAA) final rule expanding the circumstances in which drone operations may be conducted over people, over moving vehicles, and at night is set to go into effect on April 21, 2021. The rule may open the door to manufacturers expanding internal implementation of drone technology to simplify inspections and streamline processes, as well as the Occupational Safety and Health Administration (OSHA) increasing the use of drones as an enforcement tool for workplace safety in the manufacturing setting. Manufacturers must stay abreast of developments in drone regulations to balance workplace safety and productivity with issues of privacy and security.

On December 28, 2020, the FAA announced a final rule, Operation of Small Unmanned Aircraft Systems Over People, which permits expanded routine operations of drones over people without waiver or exemption under certain circumstances. This rule expands operators’ ability to fly drones over people, provided that such operations meet the requirements of one of four operational categories. The first three operational categories are based on the risk of injury that drones pose to people on the ground. The last category is based on the airworthiness certificate of the drones. The effective date of the FAA’s final rule has been delayed until April 21, 2021, in accordance with the Biden administration’s regulatory freeze.

In the wake of UAS flexibility, the deployment of internal manufacturer drones could increase. In recent years, the manufacturing industry has seen a steady rise in the use of drone technology. Drones offer manufacturers increased productivity and access to data otherwise deemed too dangerous or difficult to obtain. For example, manufacturers use drones for asset monitoring in production by capturing thermal images of lines and machinery to detect temperature changes, which signal for quick and proactive action when equipment is too hot. In addition, manufacturers leverage drones to swiftly perform inventory checks and transport parts across plants for delivery. With the FAA’s more flexible rule, the operational possibilities for drone use by manufacturers will only expand. Nevertheless, manufacturers should be attentive of employee privacy and safety concerns with drones flying overhead by establishing sound drone policies, procedures, and training prior to deployment.

In addition, deployment of OSHA drones for safety inspections could increase in the manufacturing setting with the FAA’s final rule. In May 2018, OSHA released a memorandum permitting the use of UAS during OSHA inspections and only with an employer’s express consent. OSHA is exploring the option of filing an application for a Blank Public Certificate of Authorization from the FAA for nationwide drone operations. However, currently, each of OSHA’s 10 regions must appoint a UAS program manager to institute the drone program in compliance with 14 CFR part 107, Small Unmanned Aircraft Systems. Among other things, OSHA inspections must comply with the “plain sight rule,” which allows the scope of an inspection to expand if additional violations are observed in plain view. However, a drone’s plain view overhead a facility is vastly different, and arguably clearer, and certainly broader than that of an inspector on foot. While the use of drones promises faster and more effective workplace inspections, the practice also could compromise operations or specialized equipment that constitute manufacturers’ trade secrets.

Despite the FAA’s expanded rule, to date, no regulation has been issued requiring employers to consent to an OSHA drone inspection. Nevertheless, the FAA’s final rule could encourage OSHA to update its drone policy to increase regular drone use during inspections — possibly even without employer consent. Given manufacturing facilities’ typically larger area and ceiling clearance, it is more likely OSHA will seek to use drone inspections in manufacturers’ facilities than other types of employers’. Therefore, manufacturers must remain alert to protecting their rights in the wake of aerial drone inspections.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 105
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About this Author

Robert Frederick Seidler Jackson Lewis Employment attorney
Principal

Robert Frederick Seidler is a Principal in the Indianapolis, Indiana, office of Jackson Lewis P.C. He advises employers on compliance with state and federal labor regulations and represents management in labor and employment litigation.

Mr. Seidler conducts workplace training, seminars, and other engagements to assist employers of all sizes in navigating the labor law regulatory environment. In addition to legal representation in employment litigation, he also advises employers on the development of documents, contracts, and agreements including employee...

317-489-6930
Megan A. Van Pelt Labor & Employment Attorney Jackson Lewis Indianapolis, IN
Associate

Megan A. Van Pelt is an Associate in the Indianapolis, Indiana, office of Jackson Lewis P.C.  She represents employers in labor and employment litigation matters, including preventative advising and counseling.

Ms. Van Pelt represents employers in state and federal court in a wide array of employment law matters including claims of discrimination, harassment, retaliation, wrongful termination, failure to accommodate disabilities, breach of contract, wage and hour and a variety of other statutory and common law claims.  In addition, Ms. Van Pelt represents...

317-489-6930
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