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1995-01-22
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INFORMATION DATE 19920814
DESCRIPTION USDOL Program Highlights, FSNO. 92-12
TOPIC Variances
SUBJECT Variances Under OSHA
ABSTRACT At times employers may not be able to comply fully
with a new safety or health standard in the time
provided due to a shortage of personnel, materials or
equipment. In situations such as these, employers may
apply to OSHA for a temporary variance from the
standard. In other cases, employers sometimes are
using methods, equipment or facilities that differ
from those prescribed by OSHA, but that the employer
believes are equal to or better than OSHA's
requirements. In applying for a permanent variance,
the employer must be able to show that his/her
facility or method of operation provides employee
protection "at least as effective as" that required by
OSHA's standard.
U.S. Department of Labor
Program Highlights
_____________________________________________________________________
___________________________________
Fact Sheet No. OSHA 92-12
VARIANCES UNDER OSHA
At times employers may not be able to comply fully with a new
safety or health standard in the time provided due to a shortage of
personnel, materials or equipment. In situations such as these,
employers may apply to OSHA for a temporary variance from the
standard. In other cases, employers sometimes are using methods,
equipment or facilities that differ from those prescribed by OSHA,
but that the employer believes are equal to or better than OSHA's
requirements. In applying for a permanent variance, the employer
must be able to show that his/her facility or method of operation
provides employee protection "at least as effective as" that required
by OSHA's standard.
Temporary Variance
The temporary variance mechanism is used when an employer cannot
comply with OSHA requirements by the prescribed date because the
necessary construction or alteration of the facility cannot be
completed in time or when technical personnel, materials or equipment
are temporarily unavailable.
To be eligible for a temporary variance, the employer must put in
force an effective program for coming into compliance with the
standard or regulation as quickly as possible.
In the meantime, the employer must demonstrate to OSHA that all
available steps are being taken to safeguard employees.
o Identify the standard or portion of a standard from which the
variance is requested;
o State the reason(s) why the employer cannot comply;
o Document measures already taken and those to be taken
(including dates) to comply with the standard;
o Certify that workers have been informed of the variance
application and that a copy has been given to the employees'
authorized representative;
o Post a summary of the application wherever notices are normally
posted in the workplace; and
o Inform employees that they have a right to request a hearing on
the application.
Temporary variances will not be granted to employers who merely
assert they cannot afford to pay the costs of coming into compliance.
Permanent Variance
A permanent variance may be granted to employers who prove their
methods, conditions, practices, operations or processes provide a
safe and healthful workplace as effectively as compliance with the
standard.
In making a determination on a permanent variance, OSHA reviews
the employer's evidence and where appropriate arranges a visit to the
workplace to confirm the circumstances of the application. If the
request has merit, OSHA may grant a permanent variance. Final
variance orders detail the employer's specific responsibilities and
requirements and explain exactly how the employer's method varies
from the OSHA requirement.
When an employer applies for a permanent variance, he/she must
inform employees of the application and their right to request a
hearing. Applications for permanent variance must contain essentially
the same information as for temporary variance requests.
Interim Order
An employer may apply to OSHA for an interim order when seeking a
temporary variance so that he/she may continue to operate under
existing conditions until a final decision is made on the application
for variance. Application for an interim order may be submitted with
the application for a variance or separately.
If the interim order is granted, 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
representatives and posting a copy wherever notices are normally
posted.
Experimental Variance
The experimental variance may be used by an employer to
demonstrate or validate new or improved safety and health techniques.
These variances are developed in close cooperation with the OSHA
Office of Variance Determination.
Defense Variance
Another type of variance, not used to date, permits OSHA to grant
"reasonable variations, tolerances and exemptions to and from" the
Act's requirements "to avoid serious impairment of the national
defense." Defense variances may not be in effect for more than six
months without notifying employees and offering a public hearing on
the issues.
Participation
Employees, other employers and other interested groups are
encouraged to participate in the variance process. Notices of
variance applications are published in the Federal Register inviting
all interested groups to comment on the action.
# # #
This is one of a series of fact sheets highlighting U.S. Department of
Labor programs. It is intended as a general description only and does not
carry the force of legal opinion. This information will be made available
to sensory impaired individuals upon request. Voice phone: (202) 523-8151.
TDD message referral phone: 1-800-326-2577.