OSHA's Variance Program _ How to Apply for a Variance _ Occupational Safety and Health Administration.html

Occupational Safety and Health Act Variance Regulations (29 CFR 1905.10, 1905.11 and 1905.12)

OSHA's Variance Program _ How to Apply for a Variance _ Occupational Safety and Health Administration.html

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OSHA's Variance Program | How to Apply for a Variance | Occupational Safety and Health Administration

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UNITED STATES
DEPARTMENT OF LABOR

Occupational Safety and Health Administration

English | Spanish

How to Apply for a Variance

OSHA developed four variance application forms and four corresponding application checklists. Use of the forms can significantly reduce the burden of wading through the complexity of federal standards in order to interpret and understand the information requirements associated with applying for a variance. When used together with the appropriate application forms the checklists can prevent common errors likely to occur in completing variance applications. The forms are based on the Occupational Safety and Health (OSH) Act and the implementing rules (for further information and links see Variance Application Checklists and Forms below).

As the regulations do not specify a format, the application also can be prepared and submitted in the form of a letter with the following information included:

An explicit request for a variance
The specific standard from which the employer is seeking the variance.
Whether the employer is applying for a permanent, temporary, experimental, national defense, or recordkeeping variance, and an interim order. (If the application is for a temporary variance, state when the employer will be able to comply with the OSHA standard.)
A statement of the alternative means of compliance with the standard from which the applicant is seeking the variance. The statement must contain sufficient detail to support, by a preponderance of the evidence, a conclusion that the employer's proposed alternate methods, conditions, practices, operations, or processes would provide workers with protection that is at least equivalent to the protection afforded to them by the standard from which the employer is seeking the variance. (National defense variances do not require such a statement, and the statement submitted by an employer applying for a temporary variance must demonstrate that the employer is taking all available steps to safeguard workers.)
The employer's address, as well as the site location(s) that the variance will cover.
A certification that the employer notified employees using the methods specified in the appropriate variance regulation.

Types of Variances

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.

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.

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.

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.

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.

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.

Submit the original of the completed application, as well as other relevant documents¹, to:

By regular mail:

Assistant Secretary for Occupational Safety and Health
Director Office of Technical Programs and Coordination Activities
Occupational Safety and Health Administration
U.S. Department of Labor
Room N3655
200 Constitution Avenue, NW
Washington, DC 20210

By facsimile:

202 693-1644

Electronic (email):

[email protected]

Inappropriate Variance Applications

Variance applications involving one or more of the following situations are not appropriate:

The requested variance is from a "performance" standard, i.e., a standard that does not describe a specific method for meeting the requirements of the standard and therefore, there is no inherent requirement from which to grant an employer any relief.
The requested variance is from a "definition" in a standard, (i.e., a provision that defines a term used in the standard, but does not expressly specify an action for meeting a requirement of the standard) and therefore, it does not include an inherent requirement from which to grant an employer any relief.
The variance is a request for review and approval of a design or product developed for manufacture and commercial use.
There is an OSHA standard in effect that allows the requested alternative.
There exists an OSHA interpretation that permits the requested alternative.
There is an updated edition of a national consensus or industry standard referenced in the OSHA standard, and that is the subject of the variance application, that permits the requested alternative.
The application requests an exemption or exception from the requirements of the standard.
If the application is for a temporary variance, the employer applied on or after the date the standard became effective.
The applicant is contesting a citation involving the standard in question, or has an unresolved citation relating to this standard.
The application involves locations that are solely within states or territories with OSHA-approved plans.
The application is from a Federal agency.

Note: The occupational safety and health regulations entitled “Basic Program Elements for Federal Employees OSHA” (29 CFR 1960) contain provisions for an alternate standard for federal agencies. Specifically, 29 CFR 1960.17 (Alternate Standards) authorizes the head of an agency to apply to OSHA for an alternate standard (where deemed necessary). The Agency Head requesting the alternate standard must provide justification that equivalent or greater protection will be assured for affected workers by the alternate standard.

Variance Application-Related Information

All information or documents submitted in an application becomes public unless the employer claims that some of the material consists of trade secrets² or confidential business information.³ Employers seeking protection of trade secrets or other confidential business information in their variance application and supporting documents must include a request for such protection, as well as a justification for this request, in their variance application. Employers requesting such consideration should note that OSHA will assess the variance request solely on the basis of information that is available to the public.

² A trade secret is information concerning or related to processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, or losses, or expenditures of any person, firm, corporation, partnership, or association. See 18 USC 1905. For more information on trade-secret procedures, see OSHA's Field Operations Manual (FOM) at 5-10 and 5-11.

³ Confidential business information refers to information the disclosure of which may cause harm to a business. Such information may include trade secrets as described in OSHA's Field Operations Manual (FOM) at 5-10 and 5-11. In practice, it may include a variety of material such as sales and marketing data, plans, existing or new products, processes, equipment, and/or apparatus use or development descriptions, drawings, schematics, documents, plans, claims, and notes associated with patentable inventions.

Variance Application Checklists

The Variance Application Checklists may be used by variance applicants to determine if their application for a variance is complete and appropriate.

Variance Application Forms

The following Variance Application forms may be used by prospective applicants to better understand what information is required on the application. These forms may also be saved, filled in, printed and used for submission.

NOTE: When accessing the PDF files below, "RIGHT CLICK" on the links and save these files directly to your computer. Attempting to view or print PDF files through your browser with a plug-in viewer, can result in various technical difficulties.

Site Assessments

OSHA may conduct site assessments when making decisions regarding the adequacy of an application or if it needs further information to process an application. When deemed necessary, OSHA staff will perform the assessment of the employer's worksite. Site assessments are especially useful for temporary or experimental variances, or when OSHA receives employee complaints regarding a variance application. Generally, experimental variance applications will necessitate an assessment to verify that the proposed experimental conditions are safe and healthful for workers. For temporary variances, the site assessment would investigate the availability of appropriate practices, means, methods, operations, and processes needed to come into compliance with the standard, as well as the ability of the employer to meet specific deadlines.

OSHA will arrange the site assessment with the employer in advance of its arrival. There are three parts to the assessment: the opening conference, the site investigation, and the closing conference. Site assessments are not compliance inspections, and the OSHA staff participating in the assessment will not issue citations to the employer.

Granted or Denied Variances

After an employer submits a variance application, OSHA can either grant or deny the variance. Prior to granting a variance or interim order, OTPCA coordinates a thorough administrative and technical review of the application with other directorates and offices in OSHA, as well as its regional and area offices when appropriate. For permanent and experimental variances, the technical review determines if the employer’s proposed alternate method affords workers protection that is at least as effective as the protection that would result from complying with the standard. OSHA will deny a variance if the variance application fails the administrative or technical review process, including a failure to demonstrate that the proposed alternative would protect the employer's workers at least as effectively as the standard from which the employer is seeking the variance.

Copies of granted and denied variances, as well as interim orders, are available by accessing the Granted or Denied Variances Web page.

¹ Other documents may include photos, blueprints, drawings, models, reports, data, and other information and evidence necessary to describe the proposed alternative, and to demonstrate the level of employee protection it provides.

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OSHA's Variance Program _ How to Apply for a Variance _ Occupational Safety and Health Administration.html

Occupational Safety and Health Act Variance Regulations (29 CFR 1905.10, 1905.11 and 1905.12)