Monday, November 12, 2012

OSHA Regulation Variances

Variance Program
A variance is a regulatory action that permits an employer to deviate from the requirements of an OSHA standard under specified conditions. A variance does not provide an outright exemption from a standard, except in cases involving national defense as described below. Sections 6 and 16 of the Occupational Safety and Health Act of 1970 (OSH Act), and the implementing rules contained in the Code of Federal Regulations (29 CFR 1905 and 1904.38), authorized variances from the Occupational Safety and Health Administration (OSHA) standards.

An employer or class of employers may request a variance for any specific workplaces. Employers can request a variance for many reasons, including not being able to fully comply on time with a new safety or health standard because of a shortage of personnel, materials, or equipment. Employers may prefer to use methods, equipment, or facilities that they believe protect workers as well as, or better than, OSHA standards.

The Office of Technical Programs and Coordination Activities (OTPCA) in OSHA's Directorate of Technical Support and Emergency Management (DTSEM) receives and processes variance applications. OTPCA processes variance applications in close collaboration with other affected regional offices and directorates. OTPCA's goal is to ensure that employers' proposed alternatives for worker protection are as effective in providing worker protection as the standards from which the employers are seeking a variance. For questions about the variance process contact OSHA at VarianceProgram@dol.gov.
Types of Variances
  1. Permanent: Section 6(d) of the Occupational Safety and Health (OSH) Act of 1970 (29 U.S.C. 651 et seq.) authorizes permanent variances from Occupational Safety and Health Administration (OSHA) standards. An employer may apply for a permanent variance by following the regulatory requirements specified by 29 CFR 1905.11. An employer (or class or group of employers*) may request a permanent variance for a specific workplace(s). A permanent variance authorizes the employer(s) to use an alternative means to comply with the requirements of a standard when they can prove that their proposed methods, conditions, practices, operations, or processes provide workplaces that are at least as safe and healthful as the workplaces provided by the OSHA standards from which they are seeking the permanent variance. In the application, the employer must demonstrate, by a preponderance of the evidence, that the proposed alternative means of compliance provides its workers with safety and health protection that is equal to, or greater than, the protection afforded to them by compliance with the standard(s) from which they are seeking the variance. In addition, the employer must notify employees of the variance application, and of their right to participate in the variance process. Inability to afford the cost of complying with the standard is not a valid reason for requesting a permanent variance.

  2. Temporary: Section 6(b)6(A) of the OSH Act of 1970 (29 U.S.C. 651 et seq.) authorizes temporary variances from OSHA standards. Employers may apply for a temporary variance by following the regulatory requirements specified by 29 CFR 1905.10. An employer (or class or group of employers*) may request a temporary variance for a specific workplace(s). A temporary variance authorizes an employer short-term (i.e., limited time) relief from a standard when the employer cannot comply with newly published OSHA requirements by the date the standard becomes effective because they cannot complete the necessary construction or alteration of the facility in time, or when technical personnel, materials, or equipment are temporarily unavailable. (Note: The employer must submit the application for a temporary variance to OSHA prior to the effective date of the standard.) To be eligible for a temporary variance, an employer must implement an effective compliance program as quickly as possible. In the meantime, the employer must demonstrate to OSHA that it is taking all available steps to safeguard workers. Inability to afford the cost of complying with the standard is not a valid reason for requesting a temporary variance. In addition, the employer must notify employees of the variance application, and of their right to participate in the variance process.

  3. Experimental: Section 6(b)6(C) of the OSH Act of 1970 (29 U.S.C. 651 et seq.) authorizes experimental variances from OSHA standards. An employer (or class or group of employers*) may request an experimental variance for a specific workplace(s). An experimental variance authorizes the employer(s) to demonstrate or validate new or improved safety and health techniques when they can prove that their proposed experimental methods, conditions, practices, operations, or processes provide workplaces that are at least as safe and healthful as the workplaces provided by the OSHA standards from which they are seeking the experimental variance. In the application, the employer must describe in detail the proposed experimental design, and demonstrate how performing the experiment will provide workers with safety and health protection that is at least equal to the protection afforded by compliance with the standard(s). In addition, the employer must: obtain a written statement signed by each worker who agrees to participate in the proposed experiment that he/she does so knowingly, willingly, and voluntarily; and provide certification that the employer informed the volunteer workers of the plan of the proposed experiment, its attendant risk, and the right to terminate participation in the experiment.

  4. National Defense: Section 16 of the OSH Act of 1970 (29 U.S.C. 651 et seq.) authorizes national defense variances granting reasonable variations, tolerances, and exemptions from OSHA standards to avoid serious impairment of the national defense. If a national defense variance is in effect for more than six months, employers seeking the variance must notify their workers, and employees must be afforded an opportunity for a public hearing on the issues involved. An employer may apply for a national defense variance by following the regulatory requirements specified by 29 CFR 1905.12. Only Federal OSHA may grant national defense variances. An employer (or class or group of employers*) may request a national defense variance for a specific workplace(s). A national defense variance authorizes the employer(s) reasonable variations, tolerances, and exemptions from compliance with the requirements of a standard when they can show that the proposed variance is necessary and proper to avoid serious impairment to the national defense. In addition, the employer must notify employees of the variance application, and of their right to petition OSHA for a hearing.
*A class or group of employers (such as members of a trade alliance or association) may apply jointly for a variance provided an authorized representative for each employer signs the application and the application identifies each employer's affected facilities.
  1. Interim Order: When employers apply for a temporary or permanent variance, OSHA can, upon request, grant them an interim order allowing them to use the proposed alternative means of compliance while OSHA is reviewing their variance application. However, for permanent variances, OSHA will grant an interim order only after it determines that the interim order will protect workers at least as effectively as the standard from which the employer is seeking the variance. If OSHA grants the interim order on a temporary or permanent variance, employers must inform workers of the order using the same means of notification used to inform employees of the variance application.

  2. Recordkeeping Variance: This variance allows employers to use an alternative recordkeeping procedure to comply with OSHA's occupational injury and illness recordkeeping regulation at 29 CFR Part 1904 ("Recording and Reporting Occupational Injuries and Illnesses"). Alternate recordkeeping procedures must meet the purposes of the OSH Act, must not otherwise interfere with the administration of the OSH Act, and must provide the same information as the Part 1904 regulations provide. For details on the information required in the application for a recordkeeping variance, see 29 CFR 1904.38.

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