Variances from the Occupational Safety and Health Administration (OSHA) standards are authorized under 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). An employer or class of employers may request a variance for specific workplaces.
Employers should make requests for variances as follows: for permanent variances (authorized by section 6(d) of the OSH Act), the requirements of 29 CFR 1905.11 apply, while for temporary variances (authorized by section 6(b)(6)(A) of the OSH Act), the requirements of 29 CFR 1905.10 are applicable. There are also provisions in section 16 of the OSH Act (29 CFR 1905.12) for limitations, variations, tolerances, and exemptions (“national-defense variances”), and in section 6(b)(6)(C) of the OSH Act for experimental variances. Each type variance is summarized below.
Permanent Variances
This variance authorizes employers (or groups of employers) to use alternative means of complying with the requirements of OSHA standards when the employers demonstrate, with a preponderance of evidence, that the alternative protects employees at least as effectively as the requirements of the standards.
Temporary Variances
This variance delays the date on which an employer must comply with requirements of a newly issued OSHA standard. The employer must submit the variance application to OSHA after OSHA issues the standard, but prior to the effective date of the standard. In the variance application, the employer must demonstrate an inability to comply with the standard by its effective date “because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date” (see Section 6(A)(i) of the Act; 29 U.S.C. 655). Employers also must establish that they are “taking all available steps to safeguard [their] employees against the hazards covered by the standard,” and that they have “an effective program for coming into compliance with the standard as quickly as practicable” (see Section 6(A)(ii) and (iii) of the Act; 29 U.S.C. 655).
Experimental Variances
OSHA may grant this variance as an alternative to complying with the requirements of a standard whenever it determines that the variance “is necessary to permit an employer to participate in an experiment . . . designed to demonstrate or validate new and improved techniques to protect the health or safety of workers” (see Section 6(C) of the Act; 29 U.S.C. 655).
National Defense Variances
Under this variance, OSHA, after notice and an opportunity for a hearing, “may provide such reasonable limitations and may make such rules and regulations allowing reasonable variations, tolerances, or exceptions to and from” the requirments of its standards that it “finds are necessary and propoer to avoid serious impairment of the national defense” (see Section 16 of the Act; 29 U.S.C. 665). Such variances can be in effect no longer than six months without notifying the affected employees and affording them an opportunity for a hearing.
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