How to Apply for a Variance

OSHA developed four variance application forms and four corresponding application checklists. Use of the forms can significantly reduce the burden of wading through the complexity of federal standards in order to interpret and understand the information requirements associated with applying for a variance. When used together with the appropriate application forms the checklists can prevent common errors likely to occur in completing variance applications. The forms are based on the Occupational Safety and Health (OSH) Act and the implementing rules (for further information and links see Variance Application Checklists and Forms below).

As the regulations do not specify a format, the application also can be prepared and submitted in the form of a letter with the following information included:

  • An explicit request for a variance
  • The specific standard from which the employer is seeking the 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.)
  • The employer's address, as well as the site location(s) that the variance will cover.
  • A certification that the employer notified employees using the methods specified in the appropriate variance regulation.

Submit the original of the completed application, as well as other relevant documents1, to:

By regular mail:

  • Assistant Secretary for Occupational Safety and Health
  • Director Office of Technical Programs and Coordination Activities
  • Occupational Safety and Health Administration
  • U.S. Department of Labor
  • Room N3655
  • 200 Constitution Avenue, NW
  • Washington, DC 20210

By facsimile:

202-693-1644

Electronic (email):

VarianceProgram@dol.gov

Variance applications involving one or more of the following situations are not appropriate:

  • The requested variance is from a "performance" standard, i.e., a standard that does not describe a specific method for meeting the requirements of the standard and therefore, there is no inherent requirement from which to grant an employer any relief.
  • The requested variance is from a "definition" in a standard, (i.e., a provision that defines a term used in the standard, but does not expressly specify an action for meeting a requirement of the standard) and therefore, it does not include an inherent requirement from which to grant an employer any relief.
  • The variance is a request for review and approval of a design or product developed for manufacture and commercial use.
  • There is an OSHA standard in effect that allows the requested alternative.
  • There exists an OSHA interpretation that permits the requested alternative.
  • There is an updated edition of a national consensus or industry standard referenced in the OSHA standard, and that is the subject of the variance application, that permits the requested alternative.
  • The application requests an exemption or exception from the requirements of the standard.
  • If the application is for a temporary variance, the employer applied on or after the date the standard became effective.
  • The applicant is contesting a citation involving the standard in question, or has an unresolved citation relating to this standard.
  • The application involves locations that are solely within states or territories with OSHA-approved plans.
  • The application is from a Federal agency.

Note: 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 (Alternate Standards) 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.

All information or documents submitted in an application becomes public unless the employer claims that some of the material consists of trade secrets2 or confidential business information.3 Employers seeking protection of trade secrets or other confidential business information in their variance application and supporting documents must include a request for such protection, as well as a justification for this request, in their variance application. Employers requesting such consideration should note that OSHA will assess the variance request solely on the basis of information that is available to the public.

2 A trade secret is information concerning or related to processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, or losses, or expenditures of any person, firm, corporation, partnership, or association. See 18 USC 1905. For more information on trade-secret procedures, see OSHA's Field Operations Manual (FOM) at 5-10 and 5-11.

 

3 Confidential business information refers to information the disclosure of which may cause harm to a business. Such information may include trade secrets as described in OSHA's Field Operations Manual (FOM) at 5-10 and 5-11. In practice, it may include a variety of material such as sales and marketing data, plans, existing or new products, processes, equipment, and/or apparatus use or development descriptions, drawings, schematics, documents, plans, claims, and notes associated with patentable inventions.

The Variance Application Checklists may be used by variance applicants to determine if their application for a variance is complete and appropriate.

NOTE: When accessing the PDF files below, "RIGHT CLICK" on the links and save these files directly to your computer. Attempting to view or print PDF files through your browser with a plug-in viewer, can result in various technical difficulties.

OSHA may conduct site assessments (monitoring inspections) when making decisions regarding the adequacy of an application, and:

  • Before OSHA grants any experimental or temporary variances;
  • After expiration of a temporary variance, or if an employer states that it is experiencing problems in meeting the scheduled deadlines of the temporary variance;
  • Before making a decision on variance requests involving flammable or combustible liquids, toxic and carcinogenic substances, explosives, electrical equipment and other variance requests deemed necessary by OSHA;
  • After OSHA receives notification that an employee objects to a grant of a variance application at their worksite;
  • After an affected employee requests a hearing on the merits of a variance application’ and
  • Where OSHA determines that first-hand examination is necessary to obtain further information before making a decision whether to grant or deny a variance application.

Note - Monitoring Activities for OSHA-granted variances in States with State Plans will be performed by the State Plan.

OSHA will arrange the site assessment/monitoring inspection with the employer in advance of its arrival. Site assessments are not compliance inspections, and the OSHA staff participating in the assessment will not issue citations to the employer.

After an employer submits a variance application, OSHA can either grant or deny the variance. Prior to granting a variance or interim order, OTPCA coordinates a thorough administrative and technical review of the application with other directorates and offices in OSHA, as well as its regional and area offices when appropriate. For permanent and experimental variances, the technical review determines if the employer’s proposed alternate method affords workers protection that is at least as effective as the protection that would result from complying with the standard. OSHA will deny a variance if the variance application fails the administrative or technical review process, including a failure to demonstrate that the proposed alternative would protect the employer's workers at least as effectively as the standard from which the employer is seeking the variance.

Copies of granted and denied variances, as well as interim orders, are available by accessing the Granted or Denied Variances Web page.