OSH Variance Requests

In accordance with North Carolina General Statute 95-132, an employer can petition the NCDOL for relief from the requirements of a standard. There are two main types of variances: permanent and temporary.

Variances only have future effect and cannot be requested during an on-going OSH inspection to satisfy abatement for a citation. An employer must file a variance application in accordance with the requirements of NCGS 95-132 and NCAC 7A .0700-Rules of Practice for Variances.  A variance does not permit an employer's exemption from following a standard. Rather, the employer must present conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer that will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. Variance requests are reviewed by the Education, Training and Technical Assistance Bureau.

Permanent Variance

Permanent Variance

Any employer, or class of employers, desiring a permanent variance from a standard or portion of a standard, may file a written application. Affected employees must be notified of the application and given an opportunity to participate in a hearing.

Final Order

An order granting a permanent variance will be issued only if it is determined after an inspection and 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 his employees which are as safe and healthful as those which would prevail if he complied with the standard.

The order will 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.

Denial

If an application is denied, the applicant will be given prompt notice of the denial, which will include a brief statement of the grounds of denial.

Application

As outlined in 29 CFR 1905.11(b), the application for a permanent variance shall include the following information. Note: There is no particular form or format required.

  1. The name and address of the applicant;
  2. The address of the place or places of employment involved;
  3. A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the applicant:
  4. A statement showing how the conditions, practices, means, methods, operations, or processes used or proposed to be used would provide employment and places of employment to employees which are as safe and healthful as those required by the standard from which a variance is sought:
  5. A certification that the applicant has informed his employees of the application by:
    • Giving a copy thereof to their authorized representative;
    • Posting a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted (or in lieu of such summary, the posting of the application itself); and
    • By other appropriate means;
  6. Any request for a hearing, as provided in this part; and
  7. A description of how employees have been informed of the application and of their right to petition the Assistant Secretary for a hearing.
  8. Where the requested variance would be applicable to employment or places of employment in more than one State, including at least one State with a State plan approved under section 18 of the Act, and involves a standard, or portion thereof, identical to a State standard effective under such plan:
    • A side-by-side comparison of the Federal standard, or portion thereof, involved with the State standard, or portion thereof, identical in substance and requirements;
    • A certification that the employer or employers have not filed for such variance on the same material facts for the same employment or place of employment with any State authority having jurisdiction under an approved plan over any employment or place of employment covered in the application; and
    • A statement as to whether, with an identification of, any citations for violations of the State standard, or portion thereof, involved have been issued to the employer or employers by any of the State authorities enforcing the standard under a plan, and are pending.

Variance requests should be mailed to:

OSH Director
N.C. Department of Labor
1101 Mail Service Center
Raleigh, NC 27699-1101
Temporary Variance

Temporary Variance

Any employer, or class of employers, who are unable to comply with a standard or portion of a standard by its effective date, may file a written application for a temporary variance. Affected employees must be notified of the application and given an opportunity to participate in a hearing.

Final Order

An order granting a temporary variance will be issued only if the employer establishes:

  1. That he is unable to comply with the standard by the effective date because of unavailability of professional or technical personnel or materials and equipment required or necessary construction or alteration of facilities or technology,
  2. That all available steps have been taken to safeguard his employees against the hazards covered by the standard, and
  3. That he has an effective program for coming into compliance with the standard as quickly as practicable.

Any order granting a temporary variance shall prescribe the practices, means, methods, operations and processes which the employer must adopt or use while the variance is in effect and state in detail a program for coming into compliance with the standard. The temporary variance may be for a period of no longer than required to achieve compliance or one year, whichever is shorter, and may be renewed only once.

Interim Order

To permit time for complete consideration of the application, the Commissioner may also issue an interim order granting the temporary variance effective until a decision is made. Interim orders may not be effective for longer than 180 days. If the interim order is granted, the employer shall notify the affected employees by the same means to be used to inform them of an application for a variance.

Experimental Variance

The Commissioner is authorized to grant a temporary variance from any standard or portion of a standard whenever it is determined that such variance is necessary to permit an employer to participate in an experiment designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers. 

Denial

If an application is denied, the applicant will be given prompt notice of the denial, which will include a brief statement of the grounds of denial.

Application

As outlined in 29 CFR 1905.10(b), the application for a temporary variance shall include the following information. Note: There is no particular form or format required. 

  1. The name and address of the applicant;
  2. The address of the place or places of employment involved;
  3. A specification of the standard or portion thereof from which the applicant seeks a variance;
  4. A representation by the applicant, supported by representations from qualified persons having first-hand knowledge of the facts represented, that he is unable to comply with the standard or portion thereof by its effective date and a detailed statement of the reasons therefor;
  5. A statement of the steps the applicant has taken and will take, with specific dates where appropriate, to protect employees against the hazard covered by the standard;
  6. A statement of when the applicant expects to be able to comply with the standard and of what steps he has taken and will take, with specific dates where appropriate, to come into compliance with the standard;
  7. A statement of the facts the applicant would show to establish that:
    • The applicant is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date;
    • He is taking all available steps to safeguard his employees against the hazards covered by the standard; and
    • He has an effective program for coming into compliance with the standard as quickly as practicable;
  8. Any request for a hearing, as provided in this part;
  9. A statement that the applicant has informed his affected employees of the application by giving a copy thereof to their authorized representative, posting a statement, giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted, and by other appropriate means; and
  10. A description of how affected employees have been informed of the application and of their right to petition the Assistant Secretary for a hearing.
  11. Where the requested variance would be applicable to employment or places of employment in more than one State, including at least one State with a State plan approved under section 18 of the Act, and involves a standard, or portion thereof, identical to a State standard effective under such plan:
    • A side-by-side comparison of the Federal standard, or portion thereof, involved with the State standard, or portion thereof, identical in substance and requirements;
    • A certification that the employer or employers have not filed for such variance on the same material facts for the same employment or place of employment with any State authority having jurisdiction under an approval plan over any employment or place of employment covered in the application; and
    • A statement as to whether, with an identification of, any citations for violations of the State standard, or portion thereof, involved have been issued to the employer or employers by any of the State authorities enforcing the standard under a plan, and are pending.

Variance requests should be mailed to:

OSH Director
N.C. Department of Labor
1101 Mail Service Center
Raleigh, NC 27699-1101