Description of Variance Procedures Occupational Safety and Health Standards Board
2520 Venture Oaks Way, Suite 350, Sacramento, CA 95833
Telephone: (916) 274-5721
(See also title 8, California Code of Regulations, chapter 3.5, section 403 et seq.)
Table of Contents
- Introduction and background
- Applying for a variance
- The variance process
- Variance application checklist
- Labor code sections 143-143.2, 146, 147
- Board regulations - Title 8, California code of regulations, sections 403-427.4
- Division Issued Long-Term Abatement, Experimental and Temporary Variances
I. Introduction and Background
A. The Standards Board
The California Occupational Safety and Health Standards Board (Board) was created by the Legislature in 1973. The Board consists of seven (7) members appointed by the Governor. Two members are selected from labor, two members from management, one member from the general public, one member from occupational health, and one member from occupational safety. The administration of the Board is delegated by the Chairperson of the Board to an Executive Officer, who is selected by the members of the Board and serves at their pleasure.
1. Adopts occupational safety and health regulations;
2. Considers petitions suggesting new or revised regulations proposed by interested person(s) concerning any area of occupational safety and health;
3. Grants permanent variances from occupational safety and health regulations;
4. Acts as a review body for any employer or other person adversely affected by the granting or denial of a temporary variance by the Division of Occupational Safety and Health.
B. Other units within the Cal/OSHA Program
The Division of Occupational Safety and Health (Division) enforces the health and safety regulations adopted by the Board. The Occupational Safety and Health Appeals Board functions as the judicial branch, resolving disputes arising out of the enforcement of Cal/OSHA regulations by the Division. The Cal/OSHA Consultation Service provides a full range of free consultation services on Cal/OSHA regulations to any employer upon request.
II. Applying for a Variance
1. Who may apply?
Any employer may apply to the Board for a permanent variance from an occupational safety and health regulation by demonstrating by a preponderance of the evidence that an alternative program, method, practice, means, device, or process will provide equal or superior safety (Labor Code section 143). For purposes of applying for a variance, elevator owners are considered employers.
2. How does one apply?
An application form is available electronically for the convenience of applicants. Many applicants find the form helpful, because its use typically helps avoid omissions and delays in the processing of the application. The form, however, is not mandatory. If you use the form, please read the instructions accompanying it. Incomplete or inaccurate information will delay processing of the application. Applicants are encouraged to use attachments to fully describe the specifics of the request.
In lieu of using the application form, an applicant may submit a letter or document which contains the specific information required by California Code of Regulations, title 8, section 411(b). Section VI below addresses the regulations relevant to obtaining a variance. A checklist of the information required in a variance application is also included here as section IV.
To obtain a copy of the application form in PDF format click here.
Files in Adobe Acrobat PDF format are viewed with Adobe Acrobat Reader. If you do not already have Adobe Acrobat installed on your computer, you may download the free Acrobat Reader from Adobe's web site at http://www.adobe.com. Download instructions are available on the Adobe web site.
To have an application mailed to you, please call the Board's office at (916) 274-5721.
Completed applications may be emailed to OSHSBVariance@dir.ca.gov or mailed/delivered to the Board at 2520 Venture Oaks Way, Suite 350, Sacramento, CA 95833.
B. Applicant obligations
Board regulations impose several obligations on applicants for a variance. Title 8, sections 407.2 and 411, impose the following obligations on applicants:
1. Inform affected employees of the application; and
2. Inform affected employees of their right to party status, to petition the Board for a hearing, and that all pleadings are available for inspection and copying at a reasonable time.
Refer directly to sections 407.2 and 411 for the specific obligations an applicant
III. The Variance Process
The following is intended to be a general outline of the variance process before the Occupational Safety and Health Standards Board. If additional information is needed or desired, please contact the Board's office.
A. Application processing
The Board staff will review an application to determine whether it contains all the information required by section 411(b). Staff may request more information from an applicant if required information is lacking.
Following receipt of a complete variance application containing all the required information, Board staff will docket the application.
The Board staff will then send a copy of the application to the Division of Occupational Safety and Health for an evaluation of whether the applicant's proposal provides equivalent safety to that provided by the relevant regulation(s). The evaluation report will contain a recommendation on whether to grant or deny the application. Board staff will also prepare an evaluation and recommendation. Both evaluations may include recommended conditions which, in the opinion of the evaluator, would make the applicant's means, methods, operations or practices at least as safe and healthful as if the applicant complied with the regulation(s) in question.
The Board staff will serve copies of the Division's and the Board staff's evaluations and recommendations on all parties after they are filed with the Board.
The Board may grant variances only after holding a hearing in which evidence is presented on the record.
The Board conducts hearings after employees or employee representatives are properly notified and given an opportunity to appear at the hearing. The average variance hearing requires about one-half hour before a hearing panel consisting of one or two Board members, along with the Board's hearing officer. Some cases involving extremely complex or controversial health or safety issues may run longer.
The Board recognizes that few applicants or employees have ever attended
or taken part in an administrative law proceeding. Therefore, it is the goal
of the Board to keep these proceedings as simple as possible so that employers
and employees can be self represented. The hearing officer assigned to the case
will explain the rules and procedures and will assist the parties to the extent
necessary at the hearing. All testimony is taken under oath and all witnesses
are subject to cross-examination by the parties of record.
The general hearing procedures are:
1. The applicant will present its case to the hearing panel. In most instances, this presentation should be no longer than five minutes. The hearing officer will ask the hearing panel and parties if there are any questions about the proposal.
2. The Division's representative will present its position regarding the applicant's proposed method of providing equivalent safety. The hearing panel and interested parties will have an opportunity to ask the Division's representative questions about the Division's evaluation and recommendation.
3. The Board's staff will also present testimony regarding their evaluation of the variance application. The hearing panel and parties will then have an opportunity to ask questions about the staff's evaluation and recommendation.
4. If the applicant's employees have party status, they or their representative will also participate in this process.
When the hearing panel and the hearing officer determine that the questions have been answered and the evidence has been submitted into the record, the record will be closed. The hearing panel will then direct the hearing officer to prepare a proposed decision. Occasionally, the record may be left open for the submission of additional material requested by the hearing panel.
Should the applicant fail to appear at the scheduled variance hearing, the Board will issue a "Notice of Intent to Dismiss". If the applicant still desires to have a hearing, a response to the notice must be filed with the Board within ten (10) days of when the notice is served. The case will be re-calendared only if good cause is established for the non-appearance. Failure to reply to a Notice of Intent to Dismiss will result in the Board issuing a "Dismissal Notice" in the matter.
C. The proposed decision
When the hearing is completed, the hearing officer will prepare a proposed written decision on behalf of the hearing panel and send a copy of this proposed decision to the parties who participated in the variance. The staff then schedules the matter for consideration by the entire Board at one of its regularly scheduled Business Meetings.
D. The Board's action on the proposed decision
At the business meeting, the hearing panel's proposed decision to grant or deny the variance will be adopted or rejected.
No new evidence can be presented to the Board at the business meeting, and the Board may consider no evidence that was not presented on the record at the variance hearing.
Parties may, but need not, attend the Business Meeting at which their proposed decision is being considered. Board staff will send a notice of the Board's official action after the business meeting.
E. Petition for rehearing
Any party to a variance proceeding has the right under title 8, California Code of Regulations, section 427 to petition the Board for a rehearing of the decision. A petition for rehearing must be filed within twenty (20) days after the decision of the Board has been served upon the parties of record.
A petition for rehearing must be based on one or more of the following grounds:
1. The Board acted without or in excess of its power.
2. The decision is not supported by substantial evidence.
3. The decision is contrary to law.
The petition for rehearing must state, in detail, the factual or legal basis for the Board to consider in granting the petition for rehearing. A copy of the petition for rehearing must be served upon all parties who have joined in the proceeding at the time the petition was filed with the Board.
Upon receipt of a petition for rehearing, the Board may:
1. Agree to reconsider the decision;
2. Reject outright the petition for rehearing and reaffirm the original decision; or
3. Take no action on the petition for thirty (30) days and the petition will automatically be deemed denied.
If the Board grants the petition for rehearing, the Board may rehear the case itself or refer the case to its hearing officer. The Board may rehear all pertinent parts of the record of the prior hearing and such additional evidence or arguments as may be presented in the petition for rehearing.
F. Judicial review
The Board’s decisions on permanent variance requests are final except for any rehearing or judicial review provided for by law, pursuant to Labor Code section 143.1.
IV. Variance Application Checklist
(See California Code of Regulations, title 8, chapter 3.5, section 411(b).)
Please review your application to make sure it contains:
- The name and address of the Employer;
- The address(es) where the variance will be in effect;
- A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the Employer to provide health and safety equal or superior to that provided by the regulations;
- A statement showing how the conditions, practices, means, methods, operations, or processes used or proposed to be used would provide health and safety equal or superior to that provided by the regulation from which a variance is sought;
- A certification that the Employer will comply with the notification and posting requirements contained in Rules 411.2 and 411.3 below;
- A specification of the Title 8 regulation from which the permanent variance is sought, including the appropriate subsections, if applicable;
- A statement of whether or not an appeal has been filed or is pending with the Occupational Safety and Health Appeals Board relative to the same safety order, including the Occupational Safety and Health Appeals Board docket number;
- A statement estimating the number of witnesses to be called by the Employer at the hearing and of the amount of time the Employer will require to present its case at the hearing; and
- One copy of any photographs, blueprints or other illustrative materials submitted to document or clarify the application.
V. Labor Code Sections 143-143.2, 146, 147
§ 143 Variances: hearings - procedure
(a) Any employer may apply to the Board for a permanent variance from an occupational safety and health standard, order, special order, or portion thereof, upon a showing of an alternate program, method, practice, means, device, or process which will provide equal or superior safety for employees.
(b) The Board shall issue such variance if it determines on the record, after opportunity for an investigation where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to their employees which are as safe and healthful as those which would prevail if they complied with the standard. The variance so issued shall prescribe the conditions the employer must maintain and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question.
(c) The Board is authorized to grant a variance from any standard or portion thereof whenever it determines such variance is necessary to permit an employer to participate in an experiment approved by the director designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.
(d) A permanent variance may be modified or revoked upon application by an employer, employees, or the division, or by the Board on its own motion, in the manner prescribed for its issuance under this section at any time.
§ 143.1 Variance hearings - notice
The Board shall conduct hearings on such requests for a permanent variance after employees or employee representatives are properly notified and given an opportunity to appear. All Board decisions on permanent variance requests shall be final except for any rehearing or judicial review provided for by law.
§ 143.2 Variance hearings procedure rules: Adoption, amendment, repeal
The Board, acting as a whole, may adopt, amend or repeal rules of practice and procedure pertaining to hearings on applications for permanent variances, variance appeals, and other matters within its jurisdiction. All such rules of practice and procedure amendments thereto, or repeal thereof shall be made in accordance with the provisions of Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3, Title 2 of the Government Code.
§ 146 Variance hearings - rules governing
In the conduct of the hearings related to permanent variances, the Board and its representatives are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure but shall conduct the hearings in accordance with Article 8 (commencing w/section 11435.05) of the Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and of Section 11513 of, the Government Code. A full and complete record shall be kept of all proceedings.
§ 147 Proposed standards, variances - evaluated by other departments
The Board shall refer to the Division of Occupational Safety and Health for evaluation any proposed occupational safety or health standard or variance from adopted standards received by the Board from sources other than the division. The division shall submit a report on the proposed standard or variance within 60 days of receipt thereof.
VI. Board Regulations
Title 8, California Code of Regulations
The following are the Board regulations referenced throughout the foregoing general description of the variance process. The regulations will control if there is any discrepancy between the general description of the variance process and the regulations. Copies of these regulations may be obtained by accessing California Code of Regulations, Title 8, Cal/OSHA Standards.
Chapter 3.5 Occupational Safety and Health Standards Board
Subchapter 1. Rules of Procedure for Interim and Permanent Variances, and Appeals
from Temporary Variances
Table of contents
Article 1. General
§ 401 Location of Principal Office.
§ 402 Tenses, Gender and Number.
§ 403 Definitions.
§ 404 Computation of Time.
§ 404.1 Late Filing.
§ 405 Hearing Officers.
§ 405.1 Authority of Hearing Officers.
§ 405.2 Board Records Not Subject to Subpoena.
§ 406 Party Status.
§ 406.1 Intervention; Appearance by Nonparties.
§ 407 Service and Notice.
§ 407.1 Proof of Service by Parties.
§ 407.2 Responsibilities of Employers to Notify Employees of Proceedings.
§ 407.3 Responsibilities of Employees to Notify Employers and Other Employees
Article 2. Applications for interim and/or permanent variance, and Appeals
from temporary variance
(Please Note: Interim variances are not available)
§ 411 Applications for Variances.
§ 411.1 Denial of Defective Application for Interim and/or Permanent Variance.
§ 411.2 Interim Variances. (Please Note: interim variances are not available)
§ 411.3 Notice of the Granting of an Interim Variance.
§ 411.4 Notice of Denial of Interim Variance.
§ 412 Appeals from Temporary Variances.
§ 412.1 Correction of Defective Appeal from a Temporary Variance.
Article 3. Prehearing Proceedings
§ 415 Referral of Variance Applications and Appeals to the Division.
§ 416 Publication of Variance Applications.
§ 417 Assignment to Hearing Panels.
§ 417.1 Objection to Hearing Panel or Hearing Officer or Board Member.
§ 417.2 Merger of Successive Variance Applications or Appeals.
§ 417.3 Withdrawal of Variance Applications and Appeals.
§ 417.4 Dismissal of Late Appeals.
§ 418 Prehearing Motions.
§ 419 Consolidation of Proceedings.
§ 420 Prehearing Conference.
Article 4. Hearings and Decisions
§ 421 Time and Place of Hearing.
§ 422 Witnesses and Subpoenas.
§ 422.1 Evidence by Affidavit.
§ 423 Conduct of Hearing.
§ 424 Evidence Rules.
§ 424.1 Official and Judicial Notice.
§ 424.2 Continuance of Hearings and Further Hearings.
§ 424.3 Representation at Hearing.
§ 424.4 Exclusion of Witnesses.
§ 424.5 Oral Arguments and Briefs.
§ 425 Judicial Enforcement.
§ 425.1 Witness Fees.
§ 425.2 Default.
§ 426 Decision; Action on Proposed Decision.
§ 426.1 Form of Decision.
§ 426.2 Notice of the Granting of a Permanent Variance or Variance Appeal.
§ 427 Petitions for Re-Hearing.
§ 427.1 Form of Petition for Re-Hearing.
§ 427.2 Proof of Service for Petition for Re-Hearing.
§ 427.3 Re-Hearing.
§ 427.4 Decision on Petition for Re-Hearing.
§ 428 Method of Publication.
VII. Division Issued Long-Term Abatement, Experimental and Temporary Variances
Oftentimes, an employer will apply for a permanent variance because of a citation from the Division of Occupational Safety & Health (Division). If the employer has decided to comply with the cited safety order, but requires time in which to achieve compliance, alternatives to applying for a variance are available. The statutory authority for these alternatives is at Labor Code sections 6450 through 6457.
The Division, under its separate authority, has the discretion to approve extensions of an abatement date prescribed by a citation.
Any California employer may apply to the Division for a temporary order granting a variance from any title 8 safety order. Temporary variance granted by the Division shall be in effect for no longer than the period of time necessary for the employer to achieve compliance with the safety order or for twelve (12) months, whichever is shorter.
The Division may grant a temporary variance from a title 8 safety order to permit an employer to participate in an experiment, approved by the Director, designed to demonstrate or validate new techniques to safeguard the health and safety of workers.
Information about these alternatives and eligibility for these alternatives should be pursued directly with the Division.