OSHA has no single, uniform application form for an employer to apply for a variance. Therefore, to apply for a variance, an employer must review the specific regulations applicable to each type of variance, and submit the required information. Generally, the application can be 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.)
- Describe 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.)
- Provide 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.
- An original copy of the completed variance application signed by the employer or an authorized representative of the employer.
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
200 Constitution Avenue, NW
Washington, DC 20210
Experience in processing variance applications indicates that such applications are not appropriate in the following situations:
- The variance is from a "performance" standard, i.e., a standard that does not describe a specific method for meeting the requirements of the standard.
- The 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.
- 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.
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.
Variance Application Checklists
To increase transparency and accessibility of variance related information, OSHA developed Variance Application Checklists designed to assist variance applicants to determine if their application for a variance is complete and appropriate.
Variance Application Forms
The Variance Application forms are designed to assist prospective variance applicants to understand what information is required for a variance to be granted in a straight-forward, effective and user-friendly manner. Use of the Variance Application forms coupled with the Variance Application Checklists significantly reduces the burden of wading through the complexity of Federal Standards in order to interpret and understand the information obligations associated with applying for a variance.
Either staff from OTPCA or the OSHA area office staff will perform an assessment of the employer's worksite when deemed necessary. OSHA will conduct site assessments when making decisions regarding the adequacy of an application and it needs further information to process an application. 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 onsite 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 subsequent site assessment: the opening conference, the site investigation, and the closing conference. Site assessments are not compliance inspections, and the OSHA compliance safety and health officers (CSHO) participating in a site assessment will not issue citations to the employer. However, the CSHO will inform the employer of any imminent dangers observed, and will request the employer to abate the hazard; if the employer refuses to do so, the CSHO will inform the nearest OSHA area office of the danger, and the area office will issue a citation. In addition, the site-assessment team will inform the employer of other hazards observed, and the need to abate the hazards, but will not issue citations for these hazards nor inform the area office of the hazards.
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 alternate method proposed by the employer affords workers protection that is as effective as the protection that would result from complying with the standard from which the employer is seeking a variance. 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 links from this Variance Web page.
1Other 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.
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 3-21.
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 3-21. 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.
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