Where to Apply for Variances from OSHA Standards

If the worksites for which variances are sought are under federal OSHA's jurisdiction, applications should be addressed to the Assistant Secretary and sent to OSHA's Office of Variance Determination, 200 Constitution Ave., N.W., Washington, D.C. 20210 (phone: 202/219-7193). The following states are under federal OSHA's jurisdiction: Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Trust Territory of the Pacific Islands, Wake Island, West Virginia and Wisconsin. 

If the worksites are in a state or territory with its own approved job safety and health program, variance applications should be made directly to the state OSHA office, usually located in the state department of labor. The following jurisdictions have their own OSHA programs, and are called "state plan states." Alaska, Arizona, California, Connecticut*, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York*, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington, and Wyoming. 

Employers with establishments in more than one state may seek multi-state variances. Even if one or more of these states has its own OSHA-approved state safety and health plan, the employer may consolidate the variance applications, address them to the Assistant Secretary and mail them to the Office of Variance Determination. OSHA's variance procedures permit employers with multi-state establishments to use federal OSHA's variance reciprocity procedures where such requests involve state plan standards (or portions thereof), which are identical in substance and requirements to federal standards. Such applications must include:

 (a) A side-by-side comparison of the federal standard and the state standards (or portions thereof) that are identical in substance and requirements; 

(b) A certification that the employer has not filed for such variance on the same material facts for the same employment or place of employment with any state authority having jurisdiction under an approved OSHA plan; and, 

(c) A statement, with appropriate identification and current status, of any citations for violations of the state standard that have been issued to the employer by any of the state authorities enforcing the standard under a plan. 

Upon receipt of a multi-state variance application meeting all requirements, federal OSHA promptly furnishes copies to appropriate state plan states and provides opportunity for comment, including opportunity to participate as a party to the consideration. As parties to the federal variance proceedings, state plan states review applications and reach judgments on establishments in their states in coordination with federal OSHA. Federal OSHA will ensure that each state plan state involved in a multi-state variance request has responded in writing, and the response will be made a part of the variance record. If an individual state concurs in the variance, the approval is reflected in the federal decision on all establishments. If a state objects, it negotiates independently with the employer to resolve any questions. If major differences result, a state may handle that aspect of the variance request under its jurisdiction independent of the multi-state application. 

Once a federal OSHA variance has been granted which applies to more than one state (including a state operating under a state plan), the variance becomes the authoritative interpretation of the employer's compliance obligations. This is true for the federal standard as well as any identical state standard, except where objections have been interposed by state authorities. 

Variances | Inspections

If your company is unable to comply with a new standard because of the unavailability of materials, equipment, or professional or technical personnel, or can prove that your facility or methods of operation provide employee protection at least as effective as that required by OSHA, it may apply for a variance from a specific standard.

Whenever an employer applies for either a temporary or a permanent variance, he or she must inform employees of the application and of their right to request a hearing.

Temporary Variance

When an employer cannot comply with a new standard by its effective date, it may apply for a temporary variance from that standard. To be eligible for a temporary variance, the employer must put into force an effective program for coming into compliance with the standard or regulations as quickly as possible. In the meantime, it must be demonstrated to OSHA that all available steps are being taken to safeguard employees.

A temporary variance may be granted for up to one year; it can be renewed twice, each time for six months.

Permanent Variance

You may also apply for a permanent variance from a standard if you can prove that your present facilities or methods of operation are at least as safe and healthful as those required by the OSHA standard.

In making a determination on a permanent variance, OSHA reviews the employer's evidence and, where appropriate, arranges a visit to the workplace to confirm the circumstances of the application. If the request has merit, OSHA may grant a permanent variance. Final variance orders detail the employer's specific responsibilities and requirements and explain exactly how the employer's method varies from the OSHA requirement.