Wash. Admin. Code § 296-900-11005 - Applying for a variance

IMPORTANT:

1. A variance provides an approved alternative to DOSH 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 DOSH requirements until the variance is granted.

(1) The employer must follow steps 1-5 to apply for a variance when they wish to use an alternative to DOSH requirements as a means to protect 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 (F414-157-000), is available for requesting variances: 1. From any L&I office. 2. On our website under Safety Forms, Variance Application https://lni.wa.gov/forms-publications/F414-157-000.pdf.

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 the safety bulletin board or where employees will easily access the information such as a break or lunch room.

* 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:

Department of Labor & Industries

Division of Occupational Safety and Health

P.O. Box 44650

Olympia, WA 98504-4650

* Email to: DOSHVarianceProgram@Lni.wa.gov

* Take to any L&I office.

Step 5: After receiving a written decision from DOSH, 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 DOSH has granted.

Notes:

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 DOSH requirements instead of the variance requirements. 4. If your variance is no longer necessary and the employer decide to follow the DOSH requirements instead, please advise DOSH in writing.

Table 1

Requesting a Variance

For this type of variance:	Include the following on written application:
Permanent variance - Request a permanent variance if it can be shown that the employer will be providing alternate methods of protecting employees from hazards that are as effective as those provided by the requirements the variance is requesting relief. Note: * A permanent variance remains in effect unless DOSH 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 DOSH for a variance from safety and health requirements. You have a right to ask DOSH for a hearing on the variance request, but you must ask for the hearing in writing by (date*). If no hearing is requested, DOSH will act on the variance request without a hearing." *This date must be 21 calendar days after the variance request is mailed or delivered.
Temporary variance Request a temporary variance if both of the following apply: * New DOSH 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 * Employer has an effective plan for meeting DOSH requirements as soon as possible. Note: * Temporary variances remain in effect: - Until current DOSH requirements are met - No longer than one year, unless extended	* Provide all the information required above for permanent variances * Also provide all of the following: - An explanation of why DOSH requirements cannot be met, including documentation that supports this belief - Steps that will be taken to protect employees until DOSH requirements can be met - When DOSH 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 DOSH:

(3) A review of all variance requests. If more information is needed to make a decision, DOSH may:

(a) Contact the employer or others who may have the needed information.

(b) Visit the workplace after contacting the employer to make arrangements.

(c) Deny the request if information needed to make a decision on it is not provided.

(4) A decision at least 21 calendar days from when the request was posted for employees.

The 21-day period allows employees time to request a hearing on a 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 the employer 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) DOSH 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 DOSH citation and notice that relates to the variance request, the decision on the variance may be delayed until the appeal is resolved.

Notes

Wash. Admin. Code § 296-900-11005

Amended by WSR 17-18-075, Filed 9/5/2017, effective 10/6/2017 Amended by WSR 25-03-091, Filed 1/16/2025, effective 2/17/2025

Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060. 06-06-020, § 296-900-11005, filed 2/21/06, effective 6/1/06.