N.Y. Comp. Codes R. & Regs. tit. 12 § 803.8

Current through Register Vol. 46, No. 45, November 2, 2024

Section 803.8 - Temporary variances

(a) Application for variance. Any employer or group of employers may apply to the commissioner for an order for a temporary variance from a newly adopted standard or any provision thereof when such employer or group of employers is unable to comply with a newly adopted standard by its effective date.

(b) Contents. The application for a temporary variance shall include:

(1) the name and address of the applicant;

(2) the address of the place or places of employment involved;

(3) a specification of the standard or portion thereof from which the applicant seeks a variance;

(4) a representation by the employer, supported by representations from qualified persons who have firsthand knowledge of the facts represented, that it is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor;

(5) a statement of the steps the employer has taken and will take, with specific dates, to protect employees against the hazard covered by the standard;

(6) a statement of when the employer expects to be able to comply with the standard and what steps he has taken and what steps he will take, with dates specified, to come into compliance with the standard;

(7) a statement of the facts the applicant would show to establish that:

(i) the applicant is unable to comply with a standard 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 because necessary construction or alteration of facilities cannot be completed by the effective date;

(ii) he is taking all available steps to safeguard employees against the hazards covered by the standard; and

(iii) he has an effective program for coming into compliance with the standard as quickly as practicable;

(8) any request for a hearing, as provided in this Part;

(9) a certification that he had 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;

(10) 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; and

(11) the name(s), title(s), address(es) and union affiliation(s) of the employee representative(s) notified.

(c) Commissioner's action. When no hearing request has been received from the employer, employees or employees' representative within 15 working days after notification by the employer that a variance is being sought, the commissioner shall render a decision on the application. Where a timely hearing request has been received from the employer, employees or employees' representative, the commissioner shall designate a hearing officer to conduct a hearing and submit a report and recommendation.

(d) Interim order. Prior to or at the hearing, upon the written request of the employer, the commissioner may issue an interim order describing conditions to be met by the employer prior to the decision on the application for a variance. If the request is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor. If an interim order is granted, a copy of the order shall be served upon the applicant for the order and other parties and the terms of the order shall be published in the State Register. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an application for a variance.

(e) Time allowed. No order granting a temporary variance may be in effect for longer than the period needed by the employer to achieve compliance with the standard or for one year, whichever period is shorter, except that such an order for temporary variance may be renewed not more than twice, so long as the requirements of this section are met and conditional requirements stipulated by the commissioner continue to be met. Application for renewal must be filed at least 90 days prior to the expiration date of the order. No interim renewal of an order for temporary variance may remain in effect longer than 180 days.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 803.8