By Alexis M. Downs

OSHA recently increased the amount of information that is publically available on OSHA’s website regarding “variances.”  Variances are alternative methods for addressing a safety hazard that do not technically comply with OSHA standards.  OSHA has allowed employers to formally apply for variances for more than 30 years, yet there are currently fewer than 30 approved variances in effect.

A variance does not actually grant relief from the standard, but rather, allows for a different method of addressing the hazard or gives a temporary reprieve under certain circumstances.  OSHA recognizes four types of variances:

  1. Temporary variances;
  2. Permanent variances;
  3. Experimental variances; and
  4. National defense variances.

The most common applications are for temporary and permanent variance.  Temporary variances allow for short-term relief from an OSHA standard, when the applying employer cannot comply with a new regulatory requirement by the regulation’s effective date.  To be eligible for a temporary variance, the employer must apply before the effective date of the new OSHA standard, and must show that all available steps are being taken to safeguard its workers in the interim.  Permanent variances allow for an alternative means of addressing the regulated hazard, where employers can prove that the alternate method is just as safe and healthful as strict compliance with the OSHA standard would be.

OSHA has long warned that requests for variances from a “performance” standard or definition, rather than from methods of meeting a standard, are not likely to be approved.  Applicants with related unresolved citations are also unlikely to be granted a variance.

Until last month, there was very little information available that shed light on the variance application, review, and decision-making process.  On September 27, 2012, OSHA announced that it would begin to publish detailed information about denied variance applications.  Following-up on that announcement, OSHA has now updated its website in a way that provides visibility into both approved and now denied requests by employers for Variances.  Specifically, OSHA’s website now contains information on the 202 denied or withdrawn variance applications from 1995 – 2010, including copies of the applications from the employers and the denial letters from OSHA.

While it is laudable that OSHA has made a move towards transparency in the Variance process, a process that has historically been too much of a black box, the data the Agency has now made available to industry just confirms what industry already knew, that Variances are nearly impossible to obtain.  Over the entire existence of OSHA, fewer than 30 total permanent variances have been granted, and there is not one single interim variance in place at this time. 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 1926.552 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 institute equally as safe and effective work practices as those proscribed by OSHA’s standards.

Those who still wish to try their hand at obtaining a variance must also weigh the possibility of on-site assessments, which OSHA has deemed “useful” in helping assess variance applications.  Although the OSHA compliance safety and health officer (CSHO) will not issue citations as a result of an on-site assessment for a variance application, the CSHO may notify the employer of hazards observed during assessment, and “request” that the employer abate the hazard.  Failure to abate hazards noted by the CSHO can later result in a citation issued from the local area office – most likely a Willful citation.