Section 303.04. Public employer variances.

 

(1)   Types of variances. Pursuant to s. 101.055 (4) , Stats., a public employer may apply to the division for a temporary, experimental or permanent variance on occupational safety and health rules affecting public employees.

(a) Temporary variance.

1. The division may grant a temporary variance before a rule goes into effect if the public employer complies with subs. (2) and (3) and establishes that it is unable to comply with a rule by the rule's effective date because of unavailability of professional or technical personnel or of necessary materials or equipment or because necessary construction or alteration of facilities cannot be completed by the effective date.

2. The employer shall also show that it is taking all available steps to safeguard employees against the hazard covered by the rule from which the variance is sought and shall possess and describe a program for coming into compliance with the rule as quickly as possible.

3. If a hearing on the application for variance is requested, the division may state in writing that non-compliance with the rule is permitted for 180 calendar days or until a decision is made after the hearing, whichever is earlier.

4. A temporary variance shall be in effect for a period to time needed by the employer to achieve compliance with the rule or for one year, whichever is shorter.

5. A temporary variance may be renewed no more than twice, and only if the public employer files an application for renewal at least 90 calendar days before expiration of the temporary variance.

(b) Experimental variance. The division may grant an experimental variance if the public employer complies with subs. (2) and (3) and it is determined that the variance is necessary to permit the employer to participate in an experiment approved by the division to demonstrate or validate new or improved techniques to safeguard the health or safety of employees.

(c) Permanent variance. The division may grant a permanent variance if the public employer complies with subs. (2) and (3) and it is determined that the employer has demonstrated by a preponderance of the evidence that the conditions and methods the employer uses or proposes to use provide employment or a place of employment which is as safe and healthful as that provided under the rule from which the employer seeks a permanent variance. A permanent variance may be modified or revoked upon application by the employer, an affected employee, a public employee representative or the department and after opportunity for a hearing on the application, but not sooner than 6 months after issuance of the permanent variance.

(2)   Application for petition for variance. Application for a petition for variance of a rule shall be made on forms furnished by the division. The following shall be submitted when requesting a variance from a rule:

(a) A completed and notarized petition for variance form including a clear and concise written statement of the specific provisions of the rule from which the variance is requested along with a specific statement of the procedures and materials to be used if the variance is granted; and

(b) A petition for variance fee as specified in ch. SPS 302 .

(3)   Notification to employees.

(a) The employer shall provide a copy of the application for petition for variance to the appropriate public employee representatives.

(b) A copy of the petition for variance shall be posted by the employer at places where notices to employees are normally posted.

(c) The notice shall summarize the application and inform public employees of the right to request a hearing. Employees shall have 15 business days to request a hearing.

(d) The public employer shall furnish evidence to the division that conditions specified in par. (c) have been satisfied and that public employees have no interest in requesting a hearing from the division.

(4)   Hearing.

(a) Upon receipt of a written request for a hearing from a public employer, an affected public employee or a public employee representative, the division shall schedule a hearing on the petition and inform the parties in writing about the date, time and place for the hearing. The division shall hold the hearing within 30 business days from receipt of the request, unless the person requesting the hearing asks for an extension.

(b) Where a hearing is requested, no decision may be made by the division until a hearing has been held.

(5)   Division action.

(a) Unless a hearing is requested upon receipt of the petition for variance form, the division shall evaluate the petition for variance and determine if the petition for variance provides for an equivalent degree of safety or health. The petition shall prescribe the methods and conditions which the employer must adopt and maintain while the variance is in effect.

(b) If additional information is needed by the division to review the petition for variance and make a determination, the division shall notify the owner in writing of the specific information requested.

(c) If it is determined that the petition for variance provides an equivalent degree of safety or health, the petition for variance shall be approved by the division.

(d) If it is determined that the petition for variance does not provide an equivalent degree of safety or health, the division may:

1. Approve the petition for variance subject to specific conditions determined by the division which will establish an equivalent degree of safety or health as specified in the rule;

2. Grant a temporary variance as specified in sub. (1) (a) ;

3. Grant an experimental variance as specified in sub. (1) (b) ; or

4. Deny the petition for variance.

(6)   Notification of petition for variance determination. The division shall notify the petitioner and affected parties in writing of the petition for variance determination. Any denial shall include the reason for denial, and information on appeals procedure.

(7)   Time limit for processing. The division shall process petitions submitted under this section as specified in s. SPS 303.03 (5) .

(8)   Revocation. The division may revoke any petition for variance where it is determined that the variance was obtained through fraud or deceit or where the petitioner has violated the specific conditions on which the variance was approved.

History: Cr. Register, November, 1988, No. 395 , eff. 12-1-88; correction in (2) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1995, No. 469 ; am. (1) (intro.), (a) 1., 3., (b), (c), (3) (d), (4), (5) (a) to (c), (d) (intro.), 1., (6) and (8), Register, September, 2000, No. 537 , eff. 10-1-00; CR 05-049 : am. (2) (b) and (7) Register July 2006 No. 607 , eff. 8-1-06; correction in (2) (b), (7) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672 .

Note

The Department form required in this section is available from the Division of Industry Services at P.O. Box 7162, Madison, WI 53707-7162; or at telephone [phone] or 877/617-1565 or 411 (Telecommunications Relay); or at the Division's Web site at http://dsps.wi.gov/programs/industry-services . Microsoft Windows NT 6.1.7601 Service Pack 1