By Adam R. YoungA. Scott HeckerDaniel R. BirnbaumJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: Augmented Reality (AR), Virtual Reality (VR), and Artificial Intelligence (AI) have become increasing factors in construction and general industry workplaces, creating not only potential safety hazards employers must address, but also opportunities for businesses to modernize and improve compliance systems.

Since the blockbuster popularity of Pokémon Go in 2016, most Americans are familiar with AR and how it might be used to project holographic images through lenses into the workplace.  That initial popularity demonstrated the most obvious new hazards of employees and other individuals wandering around workplaces for non-work tasks. 

But AR and AI offer significant promise in the field of safety.  Programs now comprehensively analyze photographs for compliance with easy-to-spot safety rules, like hard hat and glove violations.  When equipped with real time images, the technology offers increasing promise for spotting safety issues in dynamic workplaces.  Particularly in construction, AI software can be used to analyze workplaces and identify potential hazards that need to be addressed (e.g., guardrails for fall hazards).  As seen in the photo above, AR can help employees identify where and what to build.  

The growing field of “smart” and “soft” robots directly ties these analytics to real-time performance.  Powered industrial trucks that sense pedestrians and other objects will be able to prevent collisions.  Wearable biometric monitoring could track workload, metabolic heat and exposures to heat hazards.  At the National Safety Council (NSC) Congress, speakers at the Executive Forum observed “automation, wearables, augmented reality, virtual reality, drones, big data, machine learning, the Internet of Things – were all emerging technologies and were almost too numerous to keep track of.”  This Executive Forum offered an in-depth look at the tools and trends that organizations are beginning to adopt and provided some practical comments for EHS professionals who need to prepare themselves for a changing safety environment.  Readers can access NSC’s materials on these issues.

But with new technologies come new implications and challenges.  One inevitable risk of automation, particularly of a highly skilled analytical function, is improper reliance on the technology leading to complacency.  For employers to assume a workplace is safe or employees are complying with safety rules because the programs have not identified issues would be a mistake.  Under OSHA regulations, employers cannot delegate their duty to provide a safe workplace or proper supervision consistent with the employer’s safety role.  For example, an AI program and photo-analytics would be a supplement to, not a replacement for, a competent person making frequent and regular inspections at a construction site.  And employers and employees cannot delegate safe operation of vehicles to smart technology and the benefits it offers.

According to some industry leaders, the Metaverse will eclipse email and the internet as a primary form of human interaction. Employee interactions using VR create potential occupational risks that mirror those in real interactions — virtual bullying, intimidation, and sexual harassment. An outstanding question – with developing answers – is whether OSHA can regulate the Metaverse and any hazards employees face working there. Surely OSHA would take the position that employers must be proactive with regard to complaints regarding VR violence or harassment, as failure to address the issue could lead to workplace violence in the future. 

The challenges surrounding emergency technologies can bleed into the world of employment law and privacy.  Frequent AI analysis of the worksite may trigger employee surveillance issues under the NLRA.  The use of advanced, smart technologies could also implicate and infringe on protections concerning employee biometric information and issues surrounding appropriate medical inquiries under the Americans with Disabilities Act and state law. We note that Seyfarth recently presented a webinar on “The Risks and Benefits of Artificial Intelligence/Machine Learning to In-House Counsel, in Health Care and L&E Compliance.”  The program analyzed the major risks and benefits that in-house counsel face when addressing health care and labor/employment compliance issues resulting from the recent and unprecedented boom in artificial intelligence, machine learning, and internet of things in the health care and other key  industries.

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.