Effect of variances

A variance under 1905.5 only has future effect and cannot be used to excuse or retroactively nullify past citations or penalties.

• The regulation states all variances "shall have only future effect," so a variance cannot retroactively cure violations that already occurred or were cited. See 1905.5 for the exact language.

Yes. Under 1905.5, the Assistant Secretary may decline to entertain a variance application on a subject where a citation or related penalty/abatement proceeding is pending before the Occupational Safety and Health Review Commission or a State review authority until that proceeding is finished.

• That means OSHA can postpone considering your variance application while a related enforcement case is unresolved.

Under the rules governing variances referenced by 1905.5, employers may seek permanent variances, temporary variances, or variances for reasons of national defense, each with different durations and requirements.

• Permanent variances replace the standard for the employer on an ongoing basis if the employer proves an alternative provides equivalent protection.

• Temporary variances are time-limited and typically used when compliance is infeasible immediately but will be achieved later.

• National defense variances are granted for activities tied to national defense needs.

• For procedure details and filing rules, consult the Part 1905 rules referenced in 1905.5. See also guidance in several OSHA letters interpreting variance procedures (for example, Variance request for crane safety).

An employer seeking a permanent variance must prove that the alternative conditions, practices, means, methods, operations, or processes it proposes will provide employment and places of employment that are at least as safe and healthful as those required by the standard from which the variance is sought.

• This requirement is explained in OSHA guidance on variance applications; for example, the memorandum discussing the Lockheed Martin variance request describes the need for a detailed statement showing how the proposed alternative provides an equivalent level of protection (see Variance request for crane safety). Also see the procedures in 1905.5 and the broader Part 1905 rules for filing.

Yes, an employer can apply for a variance if compliance is infeasible due to physical or economic constraints, but the employer must submit an application showing that the alternative measures will provide equivalent protection.

• OSHA has addressed such situations (for example, an employer unable to meet the two-inch crane lateral clearance) and explained that the employer may request a permanent variance but must demonstrate equivalent safety; see the Overhead crane lateral clearance letter for context. Also consult 1905.5 for the principle that variances act prospectively.

No. OSHA has long taken the position that Section 6(d) of the Act, which authorizes permanent variances, does not itself provide for interim relief, and therefore interim orders are effectively inoperative under certain Parts of 1905. For example, OSHA explained that seeking a permanent variance does not automatically provide interim relief in Variance request for safety valves.

• If you need temporary relief while pursuing a variance, you should discuss options with OSHA staff, but do not assume a variance application alone will get immediate interim protection.

You can file a variance application, but 1905.5 authorizes the Assistant Secretary to decline to consider the variance while a related citation or penalty proceeding is pending before the Review Commission or appropriate State review authority.

• Practically, OSHA may wait for the enforcement proceeding to finish before acting on the variance—filing is allowed but action on it can be postponed.

Regional letters of interpretation are informative but the National Office’s interpretations control policy; OSHA’s national office LOIs supersede regional LOIs and reflect current agency policy.

• For example, OSHA clarified in the Fixed ladders in wind turbines letter that regional LOIs can be superseded by the National Office, and that employers should follow national guidance when assessing applicable standards and variance-related issues. Always cite the current national guidance and the regulatory text in 1905.5 when pursuing a variance.

The formal rules and procedures for applying for variances are set out in 29 CFR Part 1905, which includes the section 1905.5 on effect of variances.

• Part 1905 explains filing requirements, what information to include, and how OSHA evaluates applications. See Part 1905 for instructions and required contents of an application.

A variance application should contain a clear, detailed statement explaining how the proposed conditions, practices, means, methods, operations, or processes will provide a workplace that is as safe and healthful as compliance with the standard, including supporting data, engineering analyses, and any planned controls.

• OSHA has emphasized this requirement in variance-related correspondence—for example, the Varian ce request for crane safety memorandum notes paragraph 1905.11(a)(4) requiring a statement showing equivalency of protection. Refer to Part 1905 for the full application requirements.

A granted variance can authorize an employer-specific alternative to the particular standard from which the variance is granted, but only if the variance explicitly covers that standard and OSHA finds the alternative provides equivalent protection; it does not broadly legalize unsafe practices beyond the scope of the variance.

• OSHA has reviewed requests involving other standards and explained the need to apply for a variance and demonstrate equivalent safety—for example, crane-related variance inquiries are discussed in Overhead crane lateral clearance and scaffold issues are discussed in Scaffold safety requirements. Always reference the specific OSHA standard and the Part 1905 procedures when seeking relief.

If OSHA denies a variance application, the decision can be challenged through the administrative and judicial processes available under the Act, including seeking review in the appropriate forum; however, the variance rules and the agency’s discretion are significant factors in how challenges proceed.

• The variance process and potential for administrative review are governed by Part 1905, and past LOIs (for example, the denial discussion in the Digester building exits variance) illustrate OSHA’s review considerations—showing that denials often rest on failure to demonstrate equivalent safety.

A variance may permit an employer-specific alternative to a standard requirement only if OSHA grants it and the variance explicitly authorizes the alternative methods; you cannot rely on an ungranted variance to depart from required safety equipment or procedures.

• OSHA’s letters addressing fall protection and other device questions (for example, the Aerial lift fall protection device) show that alternatives must be evaluated against the standard and that employers should not assume compliance without an approved variance. Check Part 1905 and any specific variance language before changing practices.