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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.
  5. 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.
  6. 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.

*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.

Highlights

Recent Developments

  • NEW Federal Register Notice announcing Proposed Revocation of Permanent Variances Granted for Chimney Construction [1905] - 01/31/2014
  • Federal Register Notice announcing Tully/OHL USA Joint Venture: Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments [1926.803] - 01/07/2014
  • Federal Register Notice announcing Kiewit Power Constructors Co. et al.; Grant of a Permanent Variance [1926.501] - 10/02/13

How to Apply for a Variance

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
  • Room N3655
  • 200 Constitution Avenue, NW
  • Washington, DC 20210

By facsimile:

202 693-1644

Electronic (email):

VarianceProgram@dol.gov

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 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.

Site Assessments

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.

2A 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.

3Confidential 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.

Highlights

Recent Developments

  • NEW Federal Register Notice announcing Proposed Revocation of Permanent Variances Granted for Chimney Construction [1905] - 01/31/2014
  • Federal Register Notice announcing Tully/OHL USA Joint Venture: Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments [1926.803] - 01/07/2014
  • Federal Register Notice announcing Kiewit Power Constructors Co. et al.; Grant of a Permanent Variance [1926.501] - 10/02/13

OSHA Standards

The OSH Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved State Plan. OSHA standards frequently specify the means and methods that employers must use to protect employees from workplace hazards. There are specific OSHA standards for construction, maritime operations, agricultural operations, and general industry. These standards limit worker exposure to hazardous chemicals, require the use of certain safe practices and equipment, and require employers to monitor hazards and keep records of workplace injuries and illnesses. Examples of OSHA standards include requirements to:

  • Provide fall protection;
  • Prevent trench cave-ins;
  • Prevent spread of infectious diseases;
  • Assure that workers safely enter confined spaces;
  • Prevent exposure to harmful substances, such as asbestos;
  • Place guards on machines;
  • Provide respirators or other safety equipment; and
  • Provide training and information necessary to prevent or control employee exposure to hazards.

Employers also must comply with the general duty clause of the OSH Act (Section 5(a)(1)), which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. OSHA compliance officers generally cite this clause when no specific OSHA standard applies to the hazard.

Highlights

Recent Developments

  • NEW Federal Register Notice announcing Proposed Revocation of Permanent Variances Granted for Chimney Construction [1905] - 01/31/2014
  • Federal Register Notice announcing Tully/OHL USA Joint Venture: Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments [1926.803] - 01/07/2014
  • Federal Register Notice announcing Kiewit Power Constructors Co. et al.; Grant of a Permanent Variance [1926.501] - 10/02/13

Highlights

Recent Developments

  • NEW Federal Register Notice announcing Proposed Revocation of Permanent Variances Granted for Chimney Construction [1905] - 01/31/2014
  • Federal Register Notice announcing Tully/OHL USA Joint Venture: Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments [1926.803] - 01/07/2014
  • Federal Register Notice announcing Kiewit Power Constructors Co. et al.; Grant of a Permanent Variance [1926.501] - 10/02/13

OSHA-Approved State Programs

Distribution of State Plan and Federal jurisdiction states

Distribution of State Plan and Federal jurisdiction states

There are 25 states and two territories that administer OSHA-approved job safety and health plans (i.e., State Plan states and territories). Generally, these plans cover state and local government employers, as well as private-sector employees. The Connecticut, Illinois, New Jersey, New York, and Virgin Islands plans cover public-sector employers only. States and territories with approved plans must have standards that are identical to, or at least as effective as, the Federal OSHA standards.

  • Alaska
  • Arizona
  • California
  • Connecticut*
  • Hawaii
  • Indiana
  • Illinois*
  • Iowa
  • Kentucky
  • Maryland
  • Michigan
  • Minnesota
  • Nevada
  • New Mexico
  • North Carolina
  • New Jersey*
  • New York*
  • Oregon
  • South Carolina
  • Tennessee
  • Utah
  • Vermont
  • Virginia
  • Washington
  • Wyoming

Territories

  • Puerto Rico
  • Virgin Islands*

Addresses for states and territories with OSHA-approved plans are available on the OSHA Website.

*Plan covers public-sector employers only. In these states and territory, Federal OSHA covers private-sector employers. Employers applying for a variance in a state or territory with an OSHA-approved plan must submit the applications to the state or territory where they are seeking the variance. If the employer is seeking a variance for sites in multiple states or territories with OSHA-approved plans and one or more states and territories in which Federal OSHA has sole regulatory authority, employers must submit the variance application to Federal OSHA. In these cases, OSHA will coordinate the variance process with the states and territories with OSHA-approved plans.

Highlights

Recent Developments

  • NEW Federal Register Notice announcing Proposed Revocation of Permanent Variances Granted for Chimney Construction [1905] - 01/31/2014
  • Federal Register Notice announcing Tully/OHL USA Joint Venture: Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments [1926.803] - 01/07/2014
  • Federal Register Notice announcing Kiewit Power Constructors Co. et al.; Grant of a Permanent Variance [1926.501] - 10/02/13

Laws and Regulations

Highlights

Recent Developments

  • NEW Federal Register Notice announcing Proposed Revocation of Permanent Variances Granted for Chimney Construction [1905] - 01/31/2014
  • Federal Register Notice announcing Tully/OHL USA Joint Venture: Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments [1926.803] - 01/07/2014
  • Federal Register Notice announcing Kiewit Power Constructors Co. et al.; Grant of a Permanent Variance [1926.501] - 10/02/13

*Accessibility Assistance: Contact OSHA's Directorate of Technical Support and Emergency Management at (202) 639-2300 for assistance accessing PDF materials.

All other documents, that are not PDF materials or formatted for the web, are available as Microsoft Office® formats and videos and are noted accordingly. If additional assistance is needed with reading, reviewing or accessing these documents or any figures and illustrations, please also contact OSHA's Directorate of Technical Support and Emergency Management at (202) 639-2300.

**eBooks - EPUB is the most common format for e-Books. If you use a Sony Reader, a Nook, or an iPad you can download the EPUB file format. If you use a Kindle, you can download the MOBI file format.

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