What must be included in a variance petition for private and public employers ?
The following items including:
- your name and address;
- a list of the State(s) where the variance would be used;
- the address(es) of the establishment(s) involved;
- a description of:
- why the variance is being sought;
- the different recordkeeping procedures you propose to use;
- how your proposed procedures will collect the same
information as would be collected by this article and achieve the purpose of the Act; and
- a statement that you have informed your employees of the petition by giving them or their authorized representative a copy of the petition and by posting a statement summarizing the petition in the same way as notices are posted under title 8 Section 340.
How will the Assistant Secretary of Labor process the variance petition?
The following steps will be taken:
- employees and their authorized representatives will be offered an opportunity to submit written data, views, and arguments
about the petition, and
- the public may be allowed to comment by publishing the petition in the Federal Register. If so the notice will establish a public comment period and may include a schedule for a public meeting on the petition.
- After a review of the petition, comments from employees and the
public, the Assistant Secretary will decide whether or not the proposed
recordkeeping procedures will 'meet the purposes of the Act, will not
otherwise interfere with the Act, and will provide the same information
as required by the recordkeeping rule.
- If the proposed procedures meet the criteria previously stated, the Assistant Secretary may grant the variance subject to such conditions as he or she finds appropriate.
- If the Assistant Secretary grants the petition, OSHA will publish a notice in the Federal Register. The notice will include the practices the variance allows,
conditions that apply, and the reasons for allowing the variance.
If I apply for a variance, may I use my proposed recordkeeping procedures while the Assistant Secretary of Labor is processing the variance petition?
No, alternative recordkeeping practices are only allowed after the variance is approved. You must comply with the provisions of the Cal/OSHA recordkeeping rule while the Assistant Secretary is reviewing your variance petition.
If I have already been cited by the Division of Occupational Safety and Health for not following the Cal/OSHA recordkeeping rule, will my variance petition have any effect on the citation and penalty?
No. Additionally, the Assistant Secretary of Labor may elect not to review your variance petition if it includes an element for which you have been cited and the citation is still under review by a court, an Administrative Law Judge (ALJ), or the California Occupational Safety and Health Appeals Board.
If I receive a variance, may the Assistant Secretary of Labor revoke the variance at a later date?
Yes, the Assistant Secretary of Labor may revoke your variance if he or she has good cause.
What is the process for revoking a variance once it is granted ?
The same as for granting the variance. Except in cases of willfulness or
where necessary for public safety, the Assistant Secretary will:
Notify you in writing of the facts or conduct that may warrant revocation of your variance; and
Provide you, your employees, and authorized employee representatives with an opportunity to participate in the revocation process.
Is there any difference in submitting a request for a variance between private and public employers?
Yes, for public employers the determining authority is the Chief of the Division of Labor Statistics and Research, Department of Industrial Relations, State of California. For private employers the determining authority is the Assistant Secretary of Labor for the United States Department of Labor.
Is there any difference in the process for requesting and revoking variances between private and public employers ?
No, the process and required information is the same. The only difference is to whom the request for the variance is submitted.