(a) An employer may apply to the Board for a temporary order granting a variance from a rule or a provision of a rule promulgated pursuant to this chapter. The temporary order shall be granted only if the employer files an application that meets the requirements of subsection (c) of this section and establishes that:
(1) The employer is unable to comply with the rule by its effective date because of the unavailability of professional or technical personnel or materials and equipment needed to come into compliance with the rule or because necessary construction or alteration of facilities cannot be completed by the effective date;
(2) The employer is taking all available steps to safeguard the employees of the employer against the hazards covered by the rule which is the subject of the variance; and
(3) The employer has an effective program for coming into compliance with the rule as quickly as practicable.
(b) A temporary order issued pursuant to subsection (a) of this section shall prescribe the practices, means, methods, operations, and processes that the employer must adopt and use while the temporary order is in effect and state, in detail, the employer’s program for coming into compliance with the rule. The temporary order may be granted only after notice to the employees of the employer requesting the variance and after there has been an opportunity for a hearing. The Board may issue 1 interim temporary 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 rule or 1 year, whichever is shorter. A temporary order may be renewed not more than twice if the requirements of this section are met and if an application for renewal is filed at least 90 days prior to the expiration date of the temporary order. No interim temporary order renewal may remain in effect for more than 180 days.
(c) An application for a temporary order shall contain:
(1) A specification of the rule or portion of the rule 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 the employer is unable to comply with the rule or portion of the rule and a detailed statement of the reasons for the inability to comply;
(3) A statement of the steps that the employer has taken and will take, with specific dates, to protect employees against the hazard covered by the rule;
(4) A statement of when the employer expects to be able to comply with the rule and the steps the employer has taken and will take, with specific dates, to come into compliance with the rule; and
(5) Certification describing how the employees of the employer have been informed of the pending application, that the employees have been informed of their right to petition the Board for a hearing, and that the employees have been informed of the application by:
(A) Providing a copy of the application to the authorized representative of the employee;
(B) Posting a summary of the application at a place that notices to employees are normally posted specifying where a copy of the complete application may be examined; and
(C) Other appropriate means.
(d) The Board is authorized to grant a variance from a rule or portion of a rule whenever the Board determines that a variance is necessary to permit an employer to participate in an experiment approved by the employer and designed to demonstrate or validate new and improved techniques to safeguard the safety or health of employees.
1981 Ed., § 36-1210.
Section effective: Section 26 (a) of D.C. Law 7-186 (§ 32-1124(a)) provided that §§ 36-1202, 36-1203, 36-1205 to 36-1223 (§§ 32-1102, 32-1103, 32-1105 to 32-1123, 2001 Ed.), and the repeal of subchapter II of Chapter 2 of Title 36 (Chapter 8 of Title 32, 2001 Ed.) shall apply 2 years after approval of the plan by the Secretary.