Section 350.40  Petition for Variance from Standards

a)         General.  The Director can grant either temporary or permanent variances from any of the State standards upon application by a public employer, as authorized by Section 4.2 of the Health and Safety Act.  The petition shall be filed by the employer as soon as practicable when he or she finds that compliance has not been, or will not be, achieved.

b)         The petition for a variance from a standard shall be granted if it meets the requirements of this Section and establishes:

1)         The reasons for the employer's inability to achieve compliance by the required date, such as the unavailability of necessary professional or technical personnel or of materials and equipment or because necessary construction or alteration of facilities cannot be completed by the effective date;

2)         A description of interim steps being taken to safeguard the employees against the hazard during the period of noncompliance;

3)         The details of an effective program for coming into compliance as quickly as practicable; and

4)         A statement that the employees have been notified of the petition and that a copy of the petition has been posted in a conspicuous location in the workplace for a period of at least 10 working days.

c)         Affected employees or their authorized representatives may participate in the hearing on the petition by filing a request to participate with the Department within 10 working days after the date of the posting of the petition or the service of the petition.

e)         Within 15 working days after receipt of the petition, the Department shall schedule a hearing on the petition, appoint an impartial hearing officer to conduct the hearing, and serve notice of the time and location of the hearing on the employer and any employees and employee representatives who have filed a request to participate in the hearing.  The hearing shall be held within 45 calendar days after receipt of the petition.

f)         The Department shall fully consider the petition and any testimony presented by the employer, employees, and employee representatives.  The requested variance shall be granted when the Department finds that the employer has made and is making a good faith effort to achieve compliance (such as ordering necessary materials and designing, planning, and scheduling alterations), that the health and safety of the employees is being safeguarded during the noncompliance period (such as by the use of barriers, prohibition of access to the hazardous area, or posting of warning notices), and that the non-compliant condition is due to circumstances beyond the control of the employer.  If the Department finds that the conditions of this subsection have not been met, the variance shall be denied.

g)         If the employees or their authorized representatives do not file a request to participate or otherwise raise objections to the petition and the Department finds that the requested variance meets the conditions set forth in subsection (f), the Department shall issue the requested variance without holding a hearing.

h)         No order for a temporary variance may be in effect for longer than the period needed by the employer to achieve compliance or one year, whichever is shorter, except that such a variance may be renewed not more than twice, so long as the requirements of this Section are met and if an application for renewal is filed at least 90 days prior to the expiration date of the variance.  No interim renewal of a variance may remain in effect for longer than 180 days.

i)                    Application.  An application for a temporary order shall contain:

1)                  the standard or portion of a standard from which the employer seeks a variance;

2)                  a representation by the employer, along with qualified support, of the reasons for not being able to comply with the standard;

3)                  a statement of the steps taken and to be taken (with specific dates) to protect employees from a hazard covered by the standard;

4)                  a statement of when the employer expects to comply with the standard; and

5)                  a certification that the employer has informed the employees and their authorized representatives of the application, their right to petition the Department for a hearing and a copy of the posting.

j)          Permanent Variance 

1)         The Director can issue an order for permanent variance from a safety standard when:

A)        notice has been given to affected employees and the employees have been afforded the opportunity to participate in the hearing process; and

B)        a preponderance of the evidence demonstrates that the conditions, practices, means, methods, operations or processes used or proposed to be used will provide employment and places of employment as safe and healthful as those that would be produced by compliance with the standard.

2)         The order may be modified or revoked upon application by an affected party at any time after six months following its issuance.