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California's Employer Records of Occupational Injury and Illness

List of FAQs || Highlights - 14300.38  || Details - 14300.38 || California Standards-14300.38
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FAQs

14300.38 - Variances From the Recordkeeping Rule

Question 
What must be included in a variance petition for private and public employers ?

Answer
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.

Question 
How will the Assistant Secretary of Labor process the variance petition?

Answer
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. 

Question 
If I apply for a variance, may I use my proposed recordkeeping procedures while the Assistant Secretary of Labor is processing the variance petition?

Answer
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. 


Question 
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?


Answer
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.
Recordkeeping Packaging

Question 
If I receive a variance, may the Assistant Secretary of Labor revoke the variance at a later date?

Answer
Yes, the Assistant Secretary of Labor may revoke your variance if he or she has good cause. 


Question 
What is the process for revoking a variance once it is granted ?

Answer
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.

Question 
Is there any difference in submitting a request for a variance between private and public employers? 

Answer
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.


Question 
Is there any difference in the process for requesting and revoking variances between private and public employers ? 

Answer 
No, the process and required information is the same. The only difference is to whom the request for the variance is submitted. 


List of FAQs || Highlights - 14300.38  || Details - 14300.38 || California Standards-14300.38
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