2023 New York Laws › LAB - Labor › Article 2 - The Department of Labor › 30 - Variations.

§  30.  Variations.  1.  If  there  shall be practical difficulties or
unnecessary hardship in carrying out  the  provisions  of  this  chapter
relating to safety or health standards, or an order requiring compliance
with such provisions of this chapter, or in carrying out an order of the
commissioner  requiring  compliance with the state building construction
code, the commissioner may make a variation from  such  requirements  or
order if the spirit of the provision, rule or code shall be observed and
public  safety  secured.  Applications for permanent variations shall be
accompanied by a non-refundable  fee  of  three  hundred  fifty  dollars
payable to the commissioner.
2. Any person affected by such provision, rule, code, or order, or his
agent,  may  petition the commissioner, in accordance with such rules as
he shall prescribe, for such variation stating the grounds therefor.  If
a  petition  relates  to  an  order  requiring compliance with the state
building construction code, the commissioner shall give prompt notice of
the filing of such petition to the state building code council.  If,  in
the  opinion  of  the  council,  it  is  necessary  or desirable that it
intervene in  any  proceeding  in  connection  therewith,  it  shall  be
permitted  to  do  so as a matter of right. The commissioner shall fix a
day for a hearing on such  petition  and  give  notice  thereof  to  the
petitioner  and  to  such  other  persons  as  he  may determine. If the
commissioner shall permit a variation he may impose such  conditions  as
he  may  deem  necessary  or  advisable  to  assure  public  safety. The
variation shall apply to the petitioner and shall recite the  conditions
under which the variation shall be permitted.
3.  Except  for variations concerning provisions, rules, codes, orders
or any other matter affecting asbestos projects, mold projects or safety
and health standards for public employees, including but not limited  to
projects  covered  by  article  thirty  and  section  twenty-seven-a and
subdivision ten of section two hundred forty-one of this chapter;
a. any person who  petitions  the  commissioner  for  a  variation  as
provided by this section shall:
(1)  post  a  copy  of  the petition at the site to be affected by the
variation in a location that is reasonably accessible to the public  and
the employees at the site;
(2)   provide   a   listing,   in  the  petition,  of  the  designated
representatives (if any) of all  employee  organizations  recognized  or
certified  pursuant  to  the  national  labor  relations  act (29 U.S.C.
sections 151 et. seq.), article fourteen of the  civil  service  law  or
article  twenty  of  this  chapter  to  represent  employees at the site
affected by the variation; such listing  shall  provide  the  names  and
addresses of all such representatives;
(3)  mail  by  certified mail, return receipt requested, a copy of the
petition  to  the  designated  representatives  listed  as  required  by
subparagraph  two  of  this  paragraph  within three days of sending the
petition to the commissioner; and
(4) affirm in the petition  that  the  petition  has  been  posted  as
required by subparagraph one of this paragraph or that it will be posted
within one week of sending the petition to the commissioner and that the
petitioner  has  mailed  by  certified mail, return receipt requested, a
copy of the petition to all designated representatives, as  required  by
subparagraph three of this paragraph.
b.  The  commissioner shall send a copy of his or her determination on
the petition to the petitioner and any designated representatives listed
on the petition pursuant to subparagraph two  of  paragraph  a  of  this
subdivision.
4.  Whenever  a  petition  is  filed  for  a  variation,  except for a
variation relating to an  order  requiring  compliance  with  the  state

building  construction  code, or upon the commissioner's own motion, the
commissioner may make a general  variation  which  shall  apply  to  all
buildings,   installations,   or   conditions   where   the   facts  are
substantially the same as those set forth in the resolution, by whomever
the same may be owned, possessed or controlled and wherever the same may
be  or  will  thereafter  be found within the state of New York with the
same force and effect as if a variation were duly granted upon  separate
petition  and  for  the  use and benefit of every person affected by the
statutory provision or code rule from which the said  general  variation
was made.
5.  Any variation may be amended or terminated by the commissioner for
any of the following reasons:
a. The variation or any  of  its  conditions  was  or  is  not  wholly
complied with;
b. The variation does not continue to secure public safety;
c.  The  difficulties or hardship prevailing at the time of the making
of the variation have ceased to exist;
d. The labor law provision or rule from which the variation  was  made
has  been amended, or a new rule governing the subject has been adopted;
or
e. A finding by the commissioner that other substantial grounds  exist
warranting the amendment or termination of the variation.
6.  The  commissioner  may  publish  such  variations  as  he may deem
necessary. A properly indexed record of all variations shall be kept  in
the office of the department and open to public inspection.
7.  Notwithstanding any other law, rule or regulation to the contrary,
as of the effective date of sections two hundred ninety-one through  two
hundred  ninety-four  of  chapter  one  hundred  ninety  of  the laws of
nineteen hundred ninety, the fee requirements set forth in this  section
and article thirty of this chapter shall continue to apply to all public
and  private  entities,  including,  but  not limited to, the state, any
subdivision of the  state,  any  government  agency  or  instrumentality
thereof,  including  any  entity  created  by  one  or  more  states  or
subdivisions thereof,  any  public  authority,  any  public  or  private
corporation,  any  person, company, unincorporated association, firm, or
partnership and any owner or operator thereof.