23-411. Temporary and experimental variances

A. Any employer may apply to the commission for a temporary order granting a variance from a standard or regulation or any provision thereof promulgated under this article.

B. Such temporary order shall be granted only if the employer files an application which meets the requirements of subsection C of this section and establishes all of the following:

1. He is unable to comply with a standard or regulation by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or regulation or because necessary construction or alteration of facilities cannot be completed by the effective date.

2. He is taking all available steps to safeguard his employees against the hazards covered by the standard or regulation.

3. He has an effective program for coming into compliance with the standard or regulation as quickly as practicable. Any temporary order issued under this section shall prescribe the practices, means, methods, operations and processes which the employer must adopt and use while the order is in effect and state in detail his program for coming into compliance with the standard or regulation. Such a temporary order may be granted only after notice to employees and an opportunity for a hearing before the commission. A hearing must be requested within twenty days of such notice to employees. The commission may issue one interim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or regulation or six months, whichever is shorter, except that such an order may be renewed not more than once so long as the requirements of this section are met and if an application for renewal is filed at least sixty days prior to the expiration date of the order. No interim renewal of an order may remain in effect for longer than one hundred eighty days.

C. An application for a temporary order under this section shall contain all of the following:

1. A specification of the standard or regulation or portion thereof from which the employer seeks a variance.

2. A representation by the employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that he is unable to comply with the standard or regulation or portion thereof and a detailed statement of the reasons therefor.

3. A statement of the steps he has taken and will take with specific dates to protect employees against the hazard covered by the standard or regulation.

4. A statement of when he expects to be able to comply with the standard or regulation and what steps he has taken and what steps he will take with dates specified to come into compliance with the standard or regulation.

5. A certification that he has informed his employees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted and by other appropriate means. A description of how employees have been informed shall be contained in the certification. The information to employees shall also inform them of their right to petition the commission for a hearing.

D. The commission is authorized to grant an experimental variance from any standard or regulation or portion thereof whenever it determines that such variance is necessary to permit an employer to participate in an experiment approved by the commission and designed to demonstrate or validate new and improved techniques to safeguard the safety or health of workers. An employer applying for an experimental variance must comply with the requirements of subsection C, paragraphs 1, 3 and 5 of this section.