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Employers may ask OSHA for a variance from a standard or regulation if they cannot fully comply by the effective date, due to shortages of materials, equipment or professional or technical personnel, or can prove their facilities or methods of operation provide employee protection “at least as effective as” that required by OSHA.
Employers located in states with their own occupational safety and health programs should apply to the state for a variance. However, if an employer operates facilities in states under federal OSHA jurisdiction and also in state plan states, the employer may apply directly to federal OSHA for a single variance applicable to all the establishments in question.
OSHA will then work with the state plan states involved to determine if a variance can be granted which will satisfy state as well as federal OSHA requirements.
Temporary variance
A temporary variance may be granted to an employer who cannot comply with a standard or regulation by its effective date, due to unavailability of professional or technical personnel, materials or equipment, or because the necessary construction or alteration of facilities cannot be completed in time.
The employer must demonstrate to OSHA that he or she is taking all available steps to safeguard employees in the meantime, and that the employer has put in force an effective program for coming into compliance with the standard or regulation as quickly as possible.
A temporary variance may be granted for the period needed to achieve compliance or for one year, whichever is shorter. It is renewable twice, each time for six months. An application for a temporary variance must identify the standard or portion of a standard from which the variance is requested and the reasons why the employer cannot comply with the standard. The employer must document those measures already taken and to be taken (including dates) to comply with the standard.
The employer must certify that workers have been informed of the variance application, that a copy has been given to the employees' authorized representative, and that a summary of the application has been posted wherever notices are normally posted. Employees must also be informed that they have the right to request a hearing on the application.
The temporary variance will not be granted to an employer who simply cannot afford to pay for the necessary alterations, equipment or personnel.
Permanent variance
A permanent variance (alternative to a particular requirement or standard) may be granted to employers who prove their conditions, practices, means, methods, operations or processes provide a safe and healthful workplace as effectively as would compliance with the standard.
In making a determination, OSHA weighs the employer's evidence and arranges a variance inspection and hearing where appropriate. If OSHA finds the request valid, it prescribes a permanent variance detailing the employer's specific exceptions and responsibilities under the ruling.
When applying for a permanent variance, the employer must inform employees of the application and of their right to request a hearing. Anytime after six months from the issuance of a permanent variance, the employer or employees may petition OSHA to modify or revoke it. OSHA also may do this of its own accord.
Interim order
So that an employer may continue to operate under existing conditions until a variance decision is made, he or she may apply to OSHA for an interim order. Application for an interim order may be made either at the same time as, or after, application for a variance. Reasons why the order should be granted may be included in the interim order application.
If OSHA denies the request, the employer is notified of the reason for denial.
If the interim order is granted, the employer and other concerned parties are informed of the order, and the terms of the order are published in the Federal Register. The employer must inform employees of the order by giving a copy to the authorized employee representative and by posting a copy wherever notices are normally posted.
Experimental variance
If an employer is participating in an experiment to demonstrate or validate new job safety and health techniques and either the Secretary of Labor or the Secretary of HHS has approved the experiment, a variance may be granted to permit the experiment.
Other
In addition to temporary, permanent and experimental variances, the Secretary of Labor also may find certain variances justified when the national defense is impaired. For further information and assistance in applying for a variance, contact the nearest OSHA office.
Variances are not retroactive. An employer who has been cited for a standards violation may not seek relief from that citation by applying for a variance. However, the fact that a citation is outstanding does not prevent an employer from filing a variance application.
Public petitions
OSHA continually reviews its standards to keep pace with developing and changing industrial technology. Therefore, employers and employees should be aware that, just as they may petition OSHA for the development of standards, they may also petition OSHA for modification or revocation of standards.