June 16, 1993

Attached for your information and use is a handout which provides a basic overview of variances. The Office of Variance Determination has requested that this information be incorporated in OSHA Training Institute courses and distributed to the field so that the number of improper or inadequate variance requests can be reduced. As the attachment states, currently 96% of the variance applications OSHA receives are not actual requests for variance, but rather are requests for standard clarification or interpretation, or are from employers wishing to avoid complying with a standard.

It is suggested that the attached material be used as a refresher to field staff on the variance process. This topic could possibly be covered in future Area Director/Supervisor sessions, and then be passed on to CSHOs.

I hope this information is helpful. If there are any questions or comments concerning this material, please contact Cathleen Cronin of my staff on (312) 353-2500, ext. 125.

Attachment

What is a variance?

There are basically two types of variances: permanent and temporary.

A permanent variance is an alternate means of controlling a hazard that is different from the means required by a specific OSHA standard. The alternate means must be as safe and healthful as the requirements of the standard. A permanent variance is not a waiver that permits an employer to avoid complying with a standard.

A temporary variance is an alternative means of implementing a new standard during a specific period of time it takes to come into compliance with the new standard. It must be requested prior to the effective date of the standard.

Why does every CSHO need to know about variances?

For three reasons:

First, the Field Operations Manual requires CSHOs to discuss variances with employers during closing conferences that might involve citations. It is important that the CSHO explain that a variance is an alternate means to control a hazard rather than a waiver, clarification, or interpretation of the standard. If CSHOs do not understand what variances involve, employers waste the time and resources with variance applications that would be more effectively used in correcting hazards.

Second, CSHOs are expected to provide accurate information regarding the application for variance to all interested parties. In some cases, incomplete or misleading information is provided. In fact, over 96% of the variance applications submitted to OSHA have sought to clarify a standard, interpret a standard, or simply avoid complying with a standard.

Third, when a variance is completed, a CSHO may be assigned to perform an inspection to determine if the employer is meeting the requirements of the variance order.

What are the primary references concerning variances?

Section 6(b)(6)(A) of the OSH Act and 29 CFR 1905.10 for temporary variances. Section 6(d) of the OSH Act and 29 CFR 1905.11 for permanent variances.

What is required for an application for a temporary variance?

The application must include the following:

* The name and address of the applicant.

* The address of all places of employment involved in the variance.

* The specification of the standard (or portion) from which the applicant seeks the variance.

* Representations that the applicant cannot comply with the standard (or portion) by the effective date. These representations must be supported by qualified persons who have first-hand knowledge of the facts represented.

* A statement of when the applicant expects to be able to comply with the standard.

* The steps that have been taken and that will be taken (along with the dates) to come into compliance.

* Facts to show the applicant is unable to comply by the effective date because:

- professional or technical personnel are unavailable; or,

- materials or equipment are unavailable; or,

- construction or alteration of facilities is necessary.

* Facts to show the applicant is taking all available steps to safeguard the employees against the hazards covered by the standard.

* Supporting facts to show the applicant has an effective program for coming into compliance with the standard as quickly as practical.

* A request for a hearing, if desired.

o A statement that the applicant has informed the affected employees of the application by:

- giving a copy to the authorized representative; and,

- posting a statement giving a summary of the application and specifying where a copy may be examined; and,

- other appropriate means.

* A description of how affected employees have been informed of the application and their right to petition for a hearing.

* Information concerning State plans, if required.

What is required for an application for a permanent variance?

The application must include the following:

* The name and address of the applicant.

* The address of all places of employment involved in the variance.

* A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used.

* A statement showing how the conditions, practices, means, methods, operations or processes would provide employment and places of employment which are as safe and healthful as those required by the standard.

* A certification that the applicant has informed the affected employees of the application by:

- giving a copy to the authorized representative; and,

- posting a statement giving a summary of the application and specifying where a copy may be examined; and,

- other appropriate means.

* A request for a hearing, if desired.

* A description of how affected employees have been informed of the application and their right to petition for a hearing.

* Information concerning State plans, if required.

When is information concerning State plans required?

State plan information is required when all of the following conditions apply:

* When a requested variance would be applicable to places of employment in more than one State; and

* When at least one of these States has a State plan approved by OSHA; and,

* When the requested variance involves a standard (or portion) identical to a State standard effective under the plan.

What information concerning State plans is required?

When State plan information is required, it must include:

* A side-by-side comparison of the Federal standard (or portion) involved with the State standard;

* A certification that no employer has filed for a variance for the same facts and on the same place(s) of employment with any State authority who has jurisdiction; and,

* A statement identifying all citations (if any) for violations of the State standard (or portion) that have been issued or are pending.

What if the application only concerns a State that has a State plan?

In most cases when a State has a State plan, the State concerned will be responsible for reviewing variances for employers in its jurisdiction. The State would not be solely responsible if the variance were to have a national impact. Some State plans apply only to public employees; if private employees are affected by a variance in one of these states, the State would not be responsible for the variance.

Can a variance be submitted to avoid a citation?

Although variance applications can be submitted at any time, variances that are not yet granted cannot be used to determine compliance. They have a future effect only. When a citation has been issued, the Assistant Secretary may decline an application on a subject or a related subject until proceedings have been completed.

What is an interim order?

An interim order is an order to allow an applicant to use the requested means of control until a decision is rendered on a variance application. The variance application may include statements of facts or arguments as to why an interim order should be granted. Note that an interim order only applies to temporary variances.

Who should employers and employees contact if they have questions about variances?



Juanita Jones
(202) 219-7193