Light Shed on OSHA’s Variance Request Process

By Roy Maurer Oct 4, 2012

The U.S. Occupational Safety and Health Administration (OSHA) has updated its web page on variances—regulatory actions that permit an employer to deviate from the requirements of an OSHA standard under specified conditions—to improve public understanding of the variance approval process and shed light on the agency’s decisions on variance requests. Now, the page lists both denied and approved requests and provides information to employers on variance qualification guidelines, the application process and why certain applications are denied.

Employers may request a variance for many reasons, including not being able to fully comply on time with a new safety or health standard because of a shortage of personnel, materials or equipment. Employers may request a variance if they prefer to use methods, equipment or facilities that they believe protect workers as well as, or better than, OSHA standards. In these cases, employers have to prove that their proposed methods, conditions, practices, operations or processes provide workplaces that are at least as safe as the workplaces provided by the OSHA standards from which they are seeking the variance. A variance does not provide an outright exemption from a standard, except in cases involving national defense.

Variances Rarely Approved

The most important new information available to the public is the denied variance requests and reasons for the denials, said Eric Conn, head of the OSHA Practice Group at Epstein, Becker, Green in Washington, D.C.

Previously, OSHA provided only information about approved variance cases. Now, the agency offers information about denied applications to illustrate which requirements businesses failed to meet during the variance application process.

I applaud OSHA for this move towards transparency in the variance process, a process that has historically been too much of a black box,” Conn told SHRM Online. “However, the data the agency has now made available to industry just confirms what industry already knew, that variances are nearly impossible to obtain.”

Since the creation of OSHA in 1971, only 29 permanent variances are in effect, while 202 requests have been denied or withdrawn since 1995, demonstrating the difficulty in completing the process and obtaining a variance.

“This certainly does not encourage employers to apply for variances in the future,” said Mike Billok, a labor and employment law attorney at Bond, Schoeneck & King, based in Albany, N.Y.

Conn noted that of the variances that have been granted, virtually all of them relate to the use of a rope-guided hoist system as an acceptable alternative to fully enclosed hoist towers for work on chimneys. “If OSHA were to go ahead and modify [the regulation] to recognize this acceptable practice, the list of acceptable variances would all but disappear, showing even more clearly how little flexibility the agency has afforded employers to equally institute safe and effective work practices as those proscribed by OSHA’s standards,” he said.

Most companies know going in that the chances of obtaining a variance are small, but they are convinced that they cannot comply with the standard, and thus a variance is their only option, Billok told SHRM Online. “But as they go through the application process, many re-examine their assumptions about their equipment, work practices, layout, etc., and find they can comply with the standard, resulting in a withdrawal of their application,” Billok said.

OSHA’s variance web page also provides background on variance rules and additional application instructions. View the site and download OSHA’s variance fact sheet (PDF) to learn more about the different types of variances and how to apply.

Roy Maurer is an online editor/manager for SHRM.

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