| Pursuant to the Occupational Safety and Health Act of 1970, the Occupational Safety and Health Administration (OSHA) creates and enforces safety standards for American workplaces. These standards, which are categorized by industry, apply to nearly all private American employers. Once a safety standard has been enacted and published in the Federal Register, employers are required to follow it. OSHA conducts periodic inspections to ensure that the standards are being followed. Employers who fail to comply are subject to fines and other penalties.
Because there are times when employers may be unable to comply (through no fault of their own) with a new standard by its implementation date, OSHA has established a procedure under which employers may request and be granted certain variances. Employers may seek one of the following types of variances to excuse noncompliance with a standard:
- Temporary Variance,
- Permanent Variance, or
- Experimental Variance.
Temporary Variance
If an employer will be unable to comply with a new standard by the time it goes into effect, the employer may be able to request a temporary variance from OSHA. Employers may qualify for a temporary variance if:
- Necessary construction will not yet be completed,
- Professional or technical expertise may not be available, or
- Necessary equipment or materials will not be available in time.
To qualify for a temporary variance, employers must show that they are safeguarding their employees through all possible means while the variance is in place and that they are actively working to come into compliance with the standard as soon as possible. Temporary variances may be issued for up to one year; and they may then be renewed up to twice for a period of six months each time.
Permanent Variance
If an employer can demonstrate to OSHA that its conditions, practices, means, methods, operations, or processes create a workplace that is just as safe and healthful as the one that would exist under the new standard, it may be eligible for a permanent variance. If a permanent variance is granted, OSHA specifically sets forth the exceptions to the standard that apply to the employer and the employer's responsibilities under the ruling.
Experimental Variance
OSHA may also issue experimental variances to employers who, with the approval of the Department of Labor or the Department of Health and Human Services, are seeking to demonstrate or validate new job safety ideas.
Notice to and Rights of Employees
In all cases where an employer requests a variance, the employer must inform its employees of the request and make a copy of the application available to them. Employers must also inform employees that they have a right to request a hearing on the application for a variance.
Maintaining Status Quo While Application is Processed
Employers seeking a variance often apply to OSHA for an interim order permitting them to operate under their existing standards until they hear whether their variance application is granted. If such an order is granted, it is published in the federal register, and the employees must be notified of the decision. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |