A variance allows employers to protect workers by using innovative methods or updated technologies that diverge from the specific requirements of existing OSHA standards. Cole, who works for OSHA's Directorate of Science, Technology and Medicine, notes that OSHA has received 2,500 applications for variances since the agency's inception in 1973; of those, OSHA has granted approximately 180 variances.
While the approval rate seems a bit intimidating, Cole attributes it to a major misconception that employers have about variances.
"A variance is not a waiver or an exemption," Cole said, speaking to attendees at the 2006 American Industrial Hygiene Conference and Expo in Chicago. "The majority of variance applications we receive are asking for exemptions from standards as opposed to requesting to use an alternative method for complying with the standard."
The key to having a variance application approved is that the alternative method proposed must provide protection that is at least as effective as the protection provided by the OSHA requirement.
"A lot of people say, 'I think my process is safe,' or 'I think this is a valid way of doing things,' or 'I think OSHA is ridiculous,'" Cole explained. "But that has nothing to do with whether a variance is considered or not. It's about having an alternative method that protects workers equivalent to the OSHA standard."
There are four types of variances available to employers: permanent, temporary, experimental and defense. They are detailed here.
- Permanent Employers can request to use an alternative method for protecting workers. If granted, permanent variances are just that permanent. "[Permanent] variances are good forever," Cole said.
- Temporary Employers can ask for more time to comply with a new OSHA standard.
- Experimental Employers can ask for permission to test a new procedure or technology to determine if it is as effective in protecting workers as the applicable OSHA standard.
- National defense Employers can apply for a variance if complying with an OSHA standard would undermine national defense. Cole noted that OSHA has granted only one national defense variance.
Applying is a Formal Process
Cole tried to dispel other misconceptions employers have about variances. For instance, while there is no specific form to fill out for a variance application, Cole pointed out that applying for a variance is a formal process requiring approval by the assistant secretary of Labor for OSHA.
"You can't just call me up and say, 'Howard, I have a process. I think it's safe,'" Cole said.
Just as OSHA has to follow a set of formal protocols to issue or revise a standard, employers must follow specific procedures to have their variance application approved. The process includes an administrative review to make sure all the required information has been submitted; a technical review conducted by agency experts to determine if the alternative method provides adequate worker protection and is feasible for OSHA to enforce; and a public comment period.
The requirements for each type of variance are detailed in OSHA 29 CFR 1905 or Section 6 of the OSH Act.
- For permanent variances, consult 29 CFR 1905.11(1) in reference to OSH Act Section 6(d).
- For temporary variances, consult 29 CFR 1905.10 in reference to OSH Act Section 6(b)(6)(A).
- For national defense variances, consult 29 CFR 1905.12(1) in reference to OSH Act Section 16.
- For experimental variances, consult OSH Act Section 6(b)(6)(C).
A typewritten original and six copies of the application and any other documents for submission are to be signed and filed by an authorized representative of the applicant. The application should be addressed to the Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, but sent under cover addressed as follows:
U.S. Department of Labor/OSHA
Office of Technical Programs and Coordination Activities
200 Constitution Avenue NW
Washington, D.C. 20210
For employers that have facilities in both federal OSHA states and state-plan states, Cole noted that the variance application should be submitted to federal OSHA's office. For employers that have facilities only in state-plan states, variance applications must be submitted to the state-plan office, as state-plan states have their own variance programs.
Although the application process might seem a little daunting, Cole said the variance program offers benefits to employers as well as OSHA.
From the employer's perspective, a variance gives employers a chance to create their own methods for compliance. Variances are particularly useful when tackling low-priority hazards in which few workers are exposed, Cole said.
The variance program also provides employers with an opportunity to help shape workplace safety standards the agency often gets variance requests "that are ahead of the curve" and can be a source of cutting-edge ideas for OSHA. Such cutting-edge variance requests often are shared with agency officials who have a hand in issuing standards and guidance, Cole said.
For information on how to apply, visit http://www.osha.gov/dts/otpca/variances/apply.html.