TITLE 28
Labor and Labor Relations

CHAPTER 28-20
Division of Occupational Safety

SECTION 28-20-29


§ 28-20-29 Granting of variances – Statement of reasons for various actions by director.

(a)(1) Any employer may apply to the director for a temporary order granting a variance from a code or any provision of a code promulgated under this chapter.

(2) The temporary order shall be granted only if the employer files an application that meets the requirements of subsection (b) of this section and establishes that:

(i) He or she is unable to comply with a code by its effective date because of the unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the code, or because necessary construction or alteration of facilities cannot be completed by the effective date;

(ii) He or she is taking all available steps to safeguard his employees against the hazards covered by the code; and

(iii) He or she has an effective program for coming into compliance with the code as quickly as practicable.

(3) Any temporary order issued under this subsection 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 or her program for coming into compliance with the code.

(4) A temporary order may be granted only after notice to employees and an opportunity for a hearing; provided, that the director may issue one interim order to be effective until a decision is made on the basis of the hearing.

(5) No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the code or one year, whichever is shorter, except that a temporary order may not be renewed more than twice:

(i) So long as the requirements of this subsection are met and

(ii) If an application for renewal is filed at least ninety (90) days prior to the expiration date of the order.

(6) No interim renewal of an order may remain in effect for longer than one hundred and eighty (180) days.

(b) An application for a temporary order under this section shall contain:

(1) A specification of the code or portion of it from which the employer seeks a variance;

(2) A representation by the employer, supported by representations from qualified persons having first hand knowledge of the facts represented, that he or she is unable to comply with the code or portion of it and a detailed statement of the reasons for the noncompliance;

(3) A statement of the steps he or she has taken and will take, with specific dates, to protect employees against the hazards covered by the code;

(4) A statement of when he or she expects to be able to comply with the code and what steps he or she has taken and what steps he or she will take, with specific dates, to come into compliance with the code; and

(5) A certification that he or she has informed his or her employees of the application by giving a copy of it to their authorized representatives, and by 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 rights to petition the director for a hearing.

(c) The director is authorized to grant a variance from any code or portion of it whenever he or she determines, or the director of health certifies, that the variance is necessary to permit an employer to participate in an experiment approved by him or her or the director of health designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.

(d) Any affected employer may apply to the director for a rule or order for a permanent variance from a code promulgated under § 28-20-24. Affected employees shall be given notice of each application and an opportunity to participate in a hearing. The director shall issue a rule or order if he or she determines on the record, after opportunity for an inspection where appropriate, and a hearing that the proponent of the permanent variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to the employees which are as safe and healthful as those which would prevail if the employer complied with the code. The rule or order issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes, which he or she must adopt and utilize to the extent they differ from the code in question. The rule or order may be modified or revoked for cause upon application by an employer, employees, or by the director on his or her own motion, in the manner prescribed for its issuance under this subsection at any time after six (6) months from its issuance.

(e) Whenever the director promulgates any code, makes any rule, order, or decision, grants any exemption or extension of time, or compromises, mitigates, or settles any penalty assessed under this chapter or title 23, he or she shall include a statement of the reasons for the action, and a copy of the code, rule, order or decision shall be filed with the secretary of state pursuant to § 42-35-4 on the day in which it is promulgated.

History of Section.
(P.L. 1973, ch. 260, § 2; P.L. 1976, ch. 55, § 2.)