Employers and Variance Applicants
A variance permits a private sector employer or class of employers to depart from the requirements of an OSHA standard under specified conditions. A variance does not provide an exemption from a standard, except in cases involving national defense. Sections 6 and 16 of the Occupational Safety and Health Act of 1970 (OSH Act), and the implementing rules contained in volume 29 of the Code of Federal Regulations (29 CFR 1905 and 1904.38), authorize variances from OSHA standards.
There are five types of variances as follows: permanent, temporary, experimental, national defense, and recordkeeping. See the Types of Variances link for more details.
Experimental variances are used when an employer wishes to test or demonstrate the viability and effectiveness of alternate workplace hazard control approaches. Before conducting any testing of the proposed alternate workplace hazard control methods, the employer must first obtain an experimental variance. The experimental variance is designed to demonstrate or validate new and improved techniques to protect the health and safety of workers.
Employers may seek a permanent variance with an applicant-specified expiration date (such as the planned project completion date). The variance application should include details regarding the project such as planned start and completion dates, as well as the proposed alternate means of protection (29 CFR 1905.11).
The specific items required to be submitted as part of a variance application are detailed on the How to Apply for a Variance webpage. OSHA recommends use of the forms and checklists available on this site to assist applicants with their submittal. A variance application must be signed by an authorized employer representative. It may be signed either manually or electronically.
There are no fees associated with the submission and processing of variance applications.
The time required to render a decision on a variance application varies widely depending on a combination of factors including:
- complexity of the case;
- applicant's responsiveness to various follow-up requests;
- need to conduct a site visit assessment to validate the proposed alternate means of protection;
- availability of various technical experts; and
- types and volume of comments (if any) submitted either in support or opposition to granting the variance following publication of a preliminary Federal Register notice announcing the application and request for comment.
Typically, granting a variance, including publication of a preliminary Federal Register notice announcing the application and request for public comments, review and analysis of comments, as well as publication of a second Federal Register notice granting the variance requires approximately one year. As a result, applicants must submit variance applications with sufficient lead time to allow OSHA to process the application and render a decision.
An interim order (IO) allows an applicant for a variance to use its proposed alternate means of protection, on a temporary basis, until OSHA renders a final decision on the variance or revokes the IO by publishing a notice in the Federal Register. An applicant that would like OSHA to grant it an IO should include such a request with its variance application.
Variance applications may be denied for a variety of reasons, including errors in the application documents. Applicants should review the variance application forms' instructions and the application checklists on the How to Apply for a Variance webpage to avoid common errors, and to ensure the application is not defective (29 CFR 1905.14(a)).
Applications are often denied because the employer:
- requested a variance to avoid or resolve an existing citation while contesting the citation (29 CFR 1905.5);
- requested a variance without offering a proposed alternate means of protection (i.e., requested an exemption or waiver from the applicable standard) (29 CFR 1905.11);
- failed to demonstrate that the proposed alternate means of protection was at least as effective as the protection afforded by the standard from which the applicant is seeking a variance (see, for example, 29 CFR 1905.11);
- requested a variance from a standard where OSHA previously issued an interpretation (in a letter of interpretation, for example) indicating that the proposed alternate means of protection is permitted under the standard, or an enforcement policy stating that it would not issue citations in connection with violations of the standard if the employer followed the proposed alternate means of protection. In such cases, the granting of a variance would be unnecessary;
- requested a variance for an establishment(s) located solely in a state that operates its own OSHA-approved occupational safety and health plan. In such situations, applicants must follow procedures specified by the applicable State Plans (29 CFR 1952);
- requested OSHA approval of a product or product design. It is OSHA's policy not to approve or endorse products or product designs (see, for example, Dec. 30, 1983 letter of interpretation);
- requested a variance from a proposed standard that has not been published as a final rule and is subject to possible alteration and revision; or
- requested a variance from a performance standard or definition, which does not describe a specific safety practice for meeting its hazard control requirements, and therefore leaves open-ended or unspecified the means and methods for meeting its safety requirements.
Typically, if a variance application includes one of the common errors described above, a denial decision is reached and the applicant is informed within six weeks.
OSHA generally will not entertain such a variance until the contest is resolved. Variances have only future effect. They apply only to employment and places of employment that exist after OSHA grants the variance to an employer and are not retroactive (29 CFR 1905.5). During the contest period, OSHA generally will entertain a variance application on a standard other than the cited standard.
An employer may reapply for a variance if OSHA denies its variance application. However, if the applicant did not resolve the defects in the first application, OSHA will deny the second application.
Expiration dates vary according to factors such as the type of variance at issue (see the Types of Variances link for more details) and whether the employer specified an expiration date in its application. The Federal Register notice announcing the grant of a variance will indicate the effective and expiration dates of the variance
An employer granted a variance must comply with the conditions of the variance or, if it does not comply with the conditions of the variance, with the terms of the standard from which the variance was granted.
In addition, variances granted by OSHA routinely require that an employer granted a variance notify OSHA when any one of the following events occur:
- a corporate name change;
- a change of address;
- the selling of the company that obtained the variance to a new owner with an intent to transfer the variance to the purchaser;
- cessation of operations (i.e., the company that obtained the variance has gone out of business);
- when the employer determines that the variance is no longer useful in its current form and needs to be modified or revoked (in such cases, the employer may apply for a modification or revocation of the variance (29 CFR 1905.13));
- when the employer starts work at a new (construction) site(s), both before work begins and after completing work at that site(s); and
- when the employer begins work on a project(s) that requires submission of a site specific safety plan.
Further, employers must keep workers informed when filing a variance application and receiving OSHA's determination (grant or denial). Employers are required to post information about the application and associated determination (either a summary, including a specification of where the documents may be examined, or the documents themselves) at the place(s) where the employer normally posts notices to employees (See, for example, 29 CFR 1905.11). Employers must also inform their employees of their right to ask OSHA for a hearing on the variance.
Finally, employers must provide effective training to workers impacted by the variance regarding the safe and effective implementation of the variance conditions. Such training requirements come either from applicable OSHA standards or the variance itself.
A variance is granted to a specific employer or class of employers (represented, for example, by a trade association seeking and obtaining a variance on behalf of the class). When OSHA grants an employer or class of employers a variance, that variance can be used only by that employer or class of employers at the workplace(s) specified by the variance. The use and conditions of a variance cannot be transferred to other employers or classes of employers.
OSHA conducts variance-monitoring inspections. Generally, a variance-monitoring inspection is conducted sometime after OSHA granted the employer a variance. The purpose of the inspection is to verify that the employer is continuing to use its variance in an effective manner and is complying with its conditions. Variance-monitoring inspections are conducted in accordance with the inspection procedures specified by OSHA's Field Operations Manual (CPL 02-00-160).
No, however, 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 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.
State and local government employers may not obtain a variance if they operate in a state in which private sector employers are covered by federal OSHA, unless those employers operate in a state that also has a State Plan covering state and local government employers. To obtain a variance, state and local government employers operating in a State Plan state must follow the variance application procedures specified by their respective State Plans.
All information or documents submitted in a Variance application is accessible to the public unless the employer claims that some of the material consists of trade secrets or is confidential business information (see pages 5-10 and 5-11 of OSHA's Field Operations Manual for a discussion of trade secrets). Employers seeking protection of trade secrets or other confidential business information must include a request for such protection, as well as a justification for this request, in their variance application.
OSHA's Granted or Denied Variances webpage directs the public to copies of the non-confidential portions of applications, interim orders, Federal Register notices granting variances, and letters denying variance requests.
For additional information visit OSHA's Variance Program webpage or contact:
- Office of Technical Programs and Coordination Activities
- Occupational Safety and Health Administration
- Room N3655
- U.S. Department of Labor
- 200 Constitution Avenue, NW
- Washington, DC 20210
- Telephone: (202) 693-2110
- Fax: (202) 693-1644
- Electronic (email): VarianceProgram@dol.gov
Variances and State Plans
Twenty-seven states or territories run their own OSHA-approved occupational safety and health programs called State Plans. State Plans are required to have standards and enforcement programs that are "at least as effective" as OSHA's and may have different or more stringent standards and different variance application requirements. More information about State Plans is available at: http://www.osha.gov/dcsp/osp/index.html.
Yes, state and local government employers operating in a State Plan state may obtain a variance. In doing so, they must follow the variance application procedures specified by their respective State Plans.
NOTE: The alternate means of protection included in variances granted by a State Plan must be "at least as effective" as the protection afforded by the federal standard.
An employer seeking a variance for sites located exclusively in one State Plan state must apply for a variance in that particular state. The employer should check with the respective State Plan regarding the state's specific variance-related regulations and should follow the state's variance application procedures. Please visit OSHA's State Plans webpage for additional contact information.
Where a state standard is identical to a federal standard addressed to the same hazard, an employer seeking a temporary or permanent variance from that standard, or portion thereof, may elect to apply to OSHA for the variance, if the variance would be applicable to employment or places of employment in more than one state, including at least one state with an approved plan. Alternatively, an employer may elect to apply for a variance with the individual State agencies involved. Whether the employer elects to file its variance application with OSHA or the individual state agencies involved, the filing with, as well as granting, denial, modification, or revocation of a variance request or interim order by, either authority (federal or state) precludes any further substantive consideration of an application on the same material facts for the same employment or place of employment by the other authority (29 CFR 1952.9).
OSHA notes, moreover, that filing an application with OSHA allows for consistency in treatment of the variance application. A State Plan could deny a variance for a worksite in its jurisdiction, where OSHA has granted a variance on the same issue under the same set of material facts for another worksite outside the state's jurisdiction. In addition, if an employer operating sites located in a combination of federal and State Plan jurisdictions applies directly to federal OSHA for a single variance applicable to all the establishments in question, OSHA will work with the affected State Plans involved to determine if a variance can be granted that will satisfy the State Plan requirements, as well as federal OSHA requirements. Finally, OSHA could find that a State Plan would not be at least as effective as the OSHA Program if the State Plan were to grant a variance on a particular issue.
A state having jurisdiction over the employment or places of employment covered in an application to OSHA does have an opportunity to object to, or support, the substance of such an application. If OSHA determines that an application is adequate, it will publish a notice of the filing of the application in the Federal Register. In such cases, each state authority having jurisdiction over the employment or place of employment covered in the application has an opportunity to submit written data, views or arguments regarding the application and to request a hearing on the application (29 CFR 1905.14(b)).
A determination made by OSHA with respect to such an application (including an interim order) will be deemed prospectively an authoritative interpretation of the employer's compliance obligations with regard to the state standard affected by the determination in the employment or places of employment within the state's jurisdiction that are covered by the application. Such an authoritative interpretation does not affect either federal or state authority and obligations to cite for noncompliance with federal or state standards (as applicable) in employment or places of employment for which OSHA has not made a determination with respect to such an application (29 CFR 1952.9).