One thing a career on the emergency side teaches Michael Karl McNeil is that the awkward situation nobody planned for usually has a published procedure waiting for it. California safety regulation is no exception. When an employer genuinely cannot comply with a Title 8 standard as written, the answer is not to comply badly and hope the inspection goes elsewhere. The answer is a variance, and the rules for asking are published.
They sit in an unlikely place. Chapter 3.5 of Title 8 belongs to the Occupational Safety and Health Standards Board, and Subchapter 1 of that chapter is titled Rules of Procedure for Permanent Variances and Appeals from Temporary Variances. Article 2 is where the forms of the request live. Most employers never open this part of Title 8 because it is nowhere near the standards they work from every day, and the division between the two bodies involved is the first thing to understand: temporary variances are granted or denied by the Division, and the Board is the body that grants permanent ones and hears appeals from the Division’s temporary decisions.
Section 411 governs the application for a permanent variance. It is a written document, and it is filed under penalty of perjury — which is worth sitting with for a moment, because it changes the character of what is being submitted. This is not a letter explaining a difficulty. It is a sworn statement, and an application that overstates the alternative protections an employer has in place is a sworn statement that overstates them.
The section lists nine things the application must contain. The employer has to identify itself. It has to identify every work location the variance would affect, which forecloses the common instinct to describe one site and quietly rely on the outcome across a dozen. It has to describe the alternative measures it proposes to use in place of the standard, and separately it has to supply evidence that those measures provide protection equal to or better than the protection the standard would have given. Those are two distinct burdens and the second is the one applications fail on. A description of what the employer intends to do is not evidence that it works.
The application must certify that the employer has complied with the notification requirements — employees affected by a variance are entitled to know it has been requested, and an application that skips the notice has a defect on its face. It must cite the specific regulation from which relief is sought, by section. It must state whether any appeal is pending. It must estimate the witnesses the employer would present. And it must attach copies of the documentation it relies on, rather than offering to produce it later.
Section 412 covers the other route. Any employer, or other person adversely affected by the granting or denial of a temporary variance by the Division, may appeal to the Board. The appeal is in writing and carries four elements: the appellant’s name and address; the address or addresses of the employment locations involved; a specification of the variance at issue, the standard it concerns, and the grounds of the appeal; and a statement showing that the appellant is either the affected employer or a party adversely affected. The second category is easy to overlook. An employee organization that believes a temporary variance was wrongly granted has standing to say so.
One practical note on Section 412: the section as published sets out no filing deadline of its own. That is not an invitation to take time over it. Where a deadline is not stated in the procedural rule itself, the prudent assumption is that one exists elsewhere, and the date to work from is the date of the Division’s decision. The authority cited under both sections is Labor Code section 143.2, with section 6455 given as the reference for the temporary variance appeal.
What makes the variance route worth knowing is less about any individual application than about what it does to the conversation. An employer that has read Section 411 knows that infeasibility is a claim requiring proof, that an alternative has to be measured against the standard rather than against doing nothing, and that affected employees get told. That is a different posture from the one most employers arrive in, which is that the standard is unreasonable and somebody ought to understand.
Nobody files many of these. The point is knowing the door is there, and knowing it only opens for an employer who can document the alternative.
Michael Karl McNeil, REP, RIH, EPP, QSD
Michael Karl McNeil — environmental health and safety, industrial hygiene, Cal/OSHA citation defense.
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