Applying for a MIOSHA Variance

The Michigan Occupational Safety and Health Act, Act 154 of the Public Acts of 1974, as amended, was enacted to provide every Michigan employee with a safe and healthful workplace.  Section 27 of the Act and Administrative Standard Part 12, Variances, allows employers to request permission from the Michigan Occupational Safety and Health Administration (MIOSHA) to vary from a MIOSHA rule provided the proposed method provides an environment that is at least as safe and healthful as those required by MIOSHA rules. 

There are three types of variances an employer can apply for:

An experimental variance authorizes an employer to deviate from the requirements of a MIOSHA standard for a set amount of time while conducting or participating in an experiment to demonstrate or validate techniques to safeguard the health or safety of workers.

A permanent variance authorizes an employer to deviate from the requirements of a MIOSHA standard when protection is provided to employees equal to that which would be provided by compliance with the requirements of the standard.  The variance is in effect until steps are taken to revoke the variance.

A temporary variance allows an employer to deviate from the requirements of a MIOSHA standard prior to the effective date of the standard when the employer establishes they are unable to comply with a standard by its effective date because of unavailability of professional or technical personnel, 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.  A temporary variance is only valid for the specific period of time necessary for the employer to achieve compliance with the standard.

An employer desiring a variance from a rule(s) of an occupational safety and/or health standard must submit a written application to MIOSHA containing the following information.

1. The type of variance the applicant is seeking.
2. The name and address of the firm, the name and title of the person filing the application and the address of the place of employment involved.
3. A specification of the rule(s) of the standard from which a variance is desired.
4. Language which informs the employees of their right to appeal the application for a variance and petition the Department for a hearing, within 10 days of notification of the filing of the application.
5. A statement that the employer has informed the employees of the application for a variance, by giving a copy thereof to their authorized representative, if any, and posting the application or a summary of the application at the area in which the affected employees work. If a summary is posted, the summary shall specify where the complete application may be examined.
6. Certification of whether a variance has been requested from the U.S. Department of Labor on the same set of facts. If so, was the variance granted, denied, or pending?
   

   Additionally, the information in 7 and 8 are required if an employer is applying for a permanent or experimental variance. 

7. A description of the conditions, practices, means, methods, operations, and processes used or proposed to be used.
8. How the conditions, practices, means, methods, operations, and processes used or proposed to be used would provide employment to employees which is as safe and healthful as those required by the rule(s) of the standard from which a variance is desired.
   

   Additionally, the information in 9-12 are required if an employer is applying for a temporary variance.

9. A statement that the applicant is unable to comply with the standard, or portion thereof, and a detailed explanation of the reason why.
10. A statement of the steps the applicant has taken and shall take, with specific dates where appropriate, to protect employees against the hazard covered by the standard.
11. A statement indicating when the applicant shall comply with the standard, and what steps the applicant has taken and shall take, with specific dates where appropriate, to comply with the standard.
12. A statement of the facts establishing that the applicant is unable to comply with a standard by its effective date because of the unavailability of professional or technical personnel, because of the unavailability of materials needed to come into compliance with the standard, or because necessary construction or alteration of facilities cannot be completed by the effective date.

An application for a variance will not be processed until the above information has been submitted in writing to the appropriate division listed below.

MIOSHA Construction Safety & Health Division
P. O. Box 30645
Lansing, MI 48909-8144
(517) 284-7680

MIOSHA General Industry Safety & Health Division
P. O. Box 30644
Lansing, MI 48909-8144
(517) 284-7750