Washington Administrative Code › Title 296 - Labor and Industries, Department of › Chapter 296-900 - Administrative rules › Section 296-900-11005 - Applying for a variance

Current through Register Vol. 24-14, July 15, 2024
IMPORTANT:
1. A variance provides an approved
			 alternative to WISHA requirements to protect employees from a
			 workplace hazard. Variances can be permanent or temporary.
2. Variances will
not
be retroactive. Employers are obligated to follow WISHA requirements
			 until the variance is granted.
(1)
			 You must follow steps 1-5 to apply for a variance when you wish to
			 use an alternative to WISHA requirements as a means to protect your
			 employees.
Step 1:
Decide what type of variance is needed by
						  reviewing the types of variances in Table 1, Requesting a
						  Variance.
Step 2:
Complete a written application for the
						  variance, following the requirements in Table 1, Requesting a
						  Variance.
Note:
A form, Variance Application (F414-021-000),
						  is available for requesting variances:
1. From any L&I office.
2. On our web site under Safety Forms,
						  Variance Application
http://www.lni.wa.gov/FormPublications/TablesForms/Safety/
						  SafetyHealth.asp.
Reference:
For a list of the local
				L&I offices, see the resources section of the Safety and health
				core rules, chapter 296-800 WAC.
Step 3:
Notify employees before submitting any type
						  of variance request by doing all of the following:
* Posting a copy of the request on your
						  safety bulletin board.
* Using other appropriate means for notifying
						  employees who may not be expected to receive notices posted on the
						  safety bulletin board. For example, provide a copy to a designated
						  representative or the safety committee.
Step 4:
Submit the written request, using one of the
						  following means:
* Mail to:
Assistant Director
WISHA Services
P.O. Box 44650
Olympia, WA 98504-4650
* Fax to: 360-902-5438
* Take to any L&I office.
Step 5:
After receiving a written decision from WISHA
						  about your request, immediately notify affected employees of the
						  decision by using the methods in Step 3.
(2) You must follow the specific
			 requirements of the variance that WISHA has granted.
Note:
1. If employers fail to follow Steps 1-5
						  above, the variance cannot be granted.
2. Citations may be issued for failing to
						  follow a variance.
3. Employers can always follow the original
						  WISHA requirements instead of the variance requirements.
4. If your variance is no longer necessary
						  and you decide to follow the WISHA requirements instead, please
						  advise WISHA in writing.
Table 1 Requesting a Variance
For this type of
						  variance:
Include the following on your written
						  application:
Permanent variance
- Request a permanent variance if you can
						  show that you will be providing alternate methods of protecting
						  employees from hazards that are as effective as those provided by the
						  requirements from which you are requesting relief.
Note:
* A permanent variance remains in effect
						  unless WISHA modifies or revokes it. Examples of reasons a variance
						  might be revoked include:
- An employer requests the variance be
						  revoked
- Requirements that existed when the variance
						  was approved are modified
- The work location is changed
* Employer name and address
* Employer or employer representative
						  signature
* Work locations and situations that apply to
						  the variance
* Which specific requirements you want to
						  vary from, with WAC numbers
* Description of proposed alternative methods
						  of protection, and how they will protect employees.
* How employees will be notified:
- About the variance request, as required in
						  Step 2
- That they may request a hearing
* The following notice on the first page of
						  your posted application, written in large and clear enough print to
						  be easily read:
*Attention Employees: Your employer is
						  applying to WISHA for a variance from safety and health requirements.
						  You have a right to ask WISHA for a hearing on the variance request,
						  but you must ask for the hearing in writing by (date*). If no hearing
						  is requested, WISHA will act on the variance request without a
						  hearing.*
*This date must be 21 calendar days after the
						  variance request is mailed or delivered. * Provide all the
						  information required above for permanent variances
Temporary variance
Request a temporary variance if both of the
						  following apply:
* New WISHA requirements cannot be met for
						  any of the following reasons:
- Professional or technical people are not
						  available
- Materials or equipment are not
						  available
- Construction or alteration of facilities
						  cannot be completed by the effective date of the requirements
* You have an effective plan for meeting
						  WISHA requirements as soon as possible.
Note:
* Temporary variances remain in
						  effect:
- Until current WISHA requirements are
						  met
- No longer than one year, unless
						  extended
* Also provide all of the following:
- An explanation of why WISHA requirements
						  cannot be met, including documentation that supports this
						  belief
- Steps that will be taken to protect
						  employees until WISHA requirements can be met
- When WISHA requirements will be met
- A statement that this request is from a
						  qualified person who has first hand knowledge of the facts
						  represented
What to expect from
				WISHA:
(3)
			 A review of all variance requests.
If more information is needed to make a decision,
				WISHA may:
(a) Contact you
			 or others who may have the needed information.
(b) Visit your workplace after
			 contacting you to make arrangements.
(c) Deny your request if you do not
			 provide information needed to make a decision on
			 it.
(4) A
			 decision at least twenty-one calendar days from when the request was
			 posted for employees. The twenty-one-day period allows employees time
			 to request a hearing on your variance application. See Variance
			 hearings, WAC
			 296-900-11025.
(5) A written decision either
			 granting or denying the variance.
(a) If granted, the written
			 decision will include all of the following:
(i) The requirement for which the
			 variance applies.
(ii)
			 The locations where the variance applies.
(iii) What you must do as an
			 alternative means of protecting employees.
(iv) The effective date of the
			 variance.
(v) An
			 expiration date for the variance, if applicable.
(vi) The requirement to post the
			 decision.
(b)
			 If denied, the written decision will include:
(i) A brief statement with reasons
			 for the denial.
(ii) The
			 requirement to post the decision.
(6) WISHA will review permanent
			 variances periodically after they have been in effect for six months,
			 to decide whether they are still needed or need to be changed.
Note:
If there is an appealed WISHA citation and
						  notice that relates to the variance request, the decision on the
						  variance may be delayed until the appeal is resolved.