Chapter 5. Temporary Variances of California Labor Code >> Division 5. >> Part 1. >> Chapter 5.

(a) Any employer may apply to the division for a temporary order granting a variance from an occupational safety or health standard. Such temporary order shall be granted only if the employer files an application which meets the requirements of Section 6451, and establishes that (1) he 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, (2) he is taking all available steps to safeguard his employees against the hazards covered by the standard, and (3) he has an effective program for coming into compliance with the standard as quickly as practicable.
  (b) Any temporary order issued under this section shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail his program for coming into compliance with the standard. Such a temporary order may be granted only after notice to employees and an opportunity for a hearing. However, the division may issue one interim order for a temporary variance upon submission of an application showing that the employment or place of employment will be safe for employees pending a hearing on the application for a temporary variance. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or one year, whichever is shorter, except that such an order may be renewed not more than twice provided that the requirements of this section are met and an application for renewal is filed prior to the expiration date of the order. No single renewal of an order may remain in effect for longer than 180 days.

An application for a temporary order under Section 6450 shall contain all of the following:
  (a) A specification of the standard or portion thereof from which the employer seeks a variance.
  (b) A representation by the employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that he is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor.
  (c) A statement of the steps he has taken and will take, with specific dates, to protect employees against the hazard covered by the standard.
  (d) A statement of when he expects to be able to comply with the standard and what steps he has taken and what steps he will take, with dates specified, to come into compliance with the standard.
  (e) A certification that he 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, and by other appropriate means. A description of how employees have been informed shall be contained in the certification. The information to employees shall also inform them of their right to petition the division for a hearing.

The division is authorized to grant a temporary 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.

The division may, in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, make such rules and regulations as are reasonably necessary to carry out the provisions of this chapter and to establish rules and regulations relating to the granting or denial of temporary variances.

Any employer or other person adversely affected by the granting or denial of a temporary variance may appeal to the standards board within 15 working days from receipt of the notice granting or denying the variance. The 15-day period may be extended by the standards board for good cause.

A decision of the standards board on a variance appeal is binding on the director and the division with respect to the parties involved in the particular appeal. The director shall have the right to seek judicial review of a standards board decision irrespective of whether he appeared or participated in the appeal to the standards board.

The standards board shall conduct hearings and render decisions on appeals of decisions of the division relating to allowance or denial of temporary variances. All board decisions on such variance appeals shall be in writing and shall be final except for any rehearing or judicial review.