Temporary variance

Temporary variance An OSH A variance issued to an employer who is unable to comply with a standard by its effective date for reasons beyond their control. The employer must demonstrate a plan for coming into compliance within a period not to exceed one year and provide all available measures to protect the employees in the interim. 

Safety and health professionals should be aware that there are several different types of variance actions to consider, including permanent variances, temporary variances, experimental variances, as well as variances for National Defense and recordkeeping as well as interim orders that often accompany the variance actions. Safety and health professionals should carefully analyze their unique situation and draft the written request specifically identifying the unique situation, any/all applicable standards, type of variance requested, and posting of notice and related information. It is important that safety and health professionals carefully analyze and research the situation with attention to applicable standards, interpretations, similar variance actions, and related research before applying for a 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.)... 

A statement of 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.)... 

Some employers may not be able to comply fully with a new safety and health standard in the time provided due to shortages of personnel, materials, or equipment. In situations like these, employers may apply to OSHA for a temporary variance from the standard. In other cases, employers may be using methods or equipment that differ from those prescribed by OSHA, but which the employer believes are equal to or better than OSHAs requirements, and would qualify for consideration as a permanent variance. Applications for a permanent variance must basically contain the same information as those for temporary variances. 

With regard to the PSM standard, companies will sometimes apply for a temporary variance. This is similar to the full variance except that the company acknowledges that they fully intend to comply, but they need more time. In such cases, Employers must demonstrate to OSHA that they... 

Temporary variances will not normally be given for a period of more than 1 year, and they cannot be renewed more than twice. Also, the temporary variance will not be granted to an employer who simply cannot afford to pay for the necessary alterations, equipment, or personnel. ... 

Temporary Variance—Employers may ask for this when they are unable to comply with a new standard but may be able to if given time. 

A temporary variance meeting the criteria above may be issued until compliance is achieved or for one year, whichever is shorter. It can also be extended or renewed for 6 months (twice). Employers can obtain a permanent variance if the employer can document with a preponderance of evidence that existing or proposed methods, conditions, processes, procedures, or practices provide workers with protections equivalent to or better than the OSHA standard. Employers are required to... 

The Secretary of Labor promulgates a proposed rale and interested parties can comment for up to thirty days. They can also file written objections which must be followed by a public hearing. They can also apply for a temporary variance from the standard or a provision of it. 

If the application is for a temporary variance, the employer applied on or after the date the standard became effective. 

Requests for variance should be made as follows for permanent variance [authorized by section 6(d) of the OSHAct] the requirements of 29 CFR 1905.11 are to be followed, while for temporary variance [authorized by section 6(b)(6)(A) of the OSHAct] the requirements of 29 CFR 1905.10 are applicable. There are also provisions in section 16 of the OSHAct (29 CFR 1905.12) for National Defense variances, and in section 6(b)(6)(C) of the OSHAct for variances allowing authorized experimentation. Each type variance is summarized below. 

The Assistant Secretary may issue a time-limited interim order pending the decision on the temporary variance, if such an order was requested by the applicant. 

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. 

A temporary variance allows employers a short-term (limited time) relief from a standard when they cannot comply with newly published OSHA requirements by the prescribed effective date because the necessary construction or alteration of the facility cannot be completed in time or when technical personnel, materials, or equipment are temporarily unavailable. 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 all available steps are being taken to safeguard workers. Note Inability to afford compliance costs is not a valid reason for requesting a temporary variance. 

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