DIVISION OF OCCUPATIONAL SAFETY AND HEALTH
POLICY AND PROCEDURES MANUAL
VARIANCES, MEMORANDA OF UNDERSTANDING, LONG-TERM ABATEMENTS AND JOINT AND VOLUNTARY AGREEMENTS
Issue Date: 2/1/87
AUTHORITY: California Labor Code Sec. 143, 143.1, 143.2 and 6450 through 6457.
POLICY: It is the policy of the Division of Occupational Safety and Health to grant temporary variances, including experimental variances, from Title 8 Safety Orders, to enter into Memoranda of Understanding with employers concerning occupational safety and health, to approve long-term extensions of the time fixed for abatement when appropriate, and to enter into joint and voluntary agreements with employers and employees concerning occupational safety and health issues.
Any California employer may apply to the Division for a temporary order granting a variance from any Title 8 Safety Order.
Employers may file an application for a temporary variance by writing a letter to the District Office in which their place of business is located or by writing a letter to the Chief of the Division.
NOTE: The District Manager shall send a copy of all applications from employers for a temporary variance through the Regional Manager and the Deputy Chief for Field Operations to the Chief.
An application for a temporary variance shall contain the following information:
The applicant-employer shall provide notice to employees affected by the temporary variance of the conditions of the variance and their right to a hearing concerning the Division's granting a variance.
If the applicant-employer's employees request a hearing, the Division shall conduct an informal hearing to allow the employer's employees and the employer to present their views about the variance.
NOTE: The District Manager may issue one interim order for a temporary variance upon submission of an application by the employer showing that the employment or place of employment will be safe for employees pending a hearing on the employer's application for a temporary variance.
NOTE: The Standards Board may extend the 15-day period for good cause.
When granting any temporary order, the District Manager shall specify in a letter to the employer the practices, means, methods, operations, and processes which the employer must adopt and use while the temporary variance is in effect and state in detail the employer's program for coming into compliance with the Title 8 Safety Order from which the variance is granted.
No temporary variance shall be in effect for longer than the period of time necessary for the employer to achieve compliance with the Title 8 Safety Order or for twelve (12) months, whichever is shorter.
A temporary variance may be renewed no more than twice by the Division provided that:
NOTE: No single renewal of a temporary variance shall remain in effect for longer than 180 days.
Any employer may apply to the Occupational Safety and Health Standards Board for a permanent variance from an occupational safety and health standard, order, special order, or portion thereof, upon showing of an alternate program, method, practice, means, device or process which will provide equal or superior safety for employees.
All applications for permanent variances are evaluated by the Research and Standards Unit, or other Division Units as part of the Standards Board's process of evaluating an employer's application for a permanent variance.
After due consideration, the Standards Board approves or denies the employer's petition for a permanent variance.
B. MEMORANDA OF UNDERSTANDING
A Memorandum of Understanding is a written memorandum or letter between an employer and the Division concerning the specifics of the employer's compliance with a particular Title 8 Safety Order.
A Memorandum of Understanding between the Division and an employer is useful when there is potential for a dispute between an employer and the Division over the manner in which the employer will achieve compliance with a particular Title 8 Safety Order and the employer and the Division come to an agreement on how compliance can be achieved.
The Division shall conduct an on-site evaluation of the employer's establishment as part of its evaluation of the adequacy of an employer's compliance measures.
The on-site evaluation shall be directed by the Deputy Chief for Health and Technical Services and shall be performed by a safety engineer or industrial hygienist under the direction of the Deputy Chief.
NOTE: Evaluation personnel shall consult with the District Manager, compliance personnel and others at the employer's establishment who have knowledge of the compliance issues involved.
An evaluation report shall be written and formatted like a permanent variance report and shall set forth why a Memorandum of Understanding is appropriate.
The Memorandum of Understanding shall be prepared by the Deputy Chief for Health and Technical Services, reviewed by the Deputy Chief for Field Operations and the Legal Unit and submitted to the Chief for approval and signature. The Memorandum of Understanding shall contain a statement explaining the particular compliance alternative and list conditions which must be met by the employer to maintain the Memorandum in effect.
The Memorandum of Understanding shall be issued by the Chief after approval and signature.
NOTE: Copies of the Memorandum of Understanding shall be distributed to each Regional and District Office.
C. LONG-TERM ABATEMENTS
In general, compliance personnel shall fix an abatement date for each cited violation of no more than thirty (30) days.
If an abatement period of greater than 30 days is to be fixed, compliance personnel shall obtain approval from the District Manager.
If an abatement date of more than sixty days is to be fixed, the District Manager shall obtain approval from the Regional Manager.
D. JOINT AND VOLUNTARY AGREEMENTS