§ 1309. VARIANCE AND EXEMPTION PROCEDURES.

(a) Determination. The Director of the Bureau of Toxics, Health and Safety Services in the Department of Public Health shall have authority to approve:

(1) A variance from a specific workstation standard, or rule or regulation adopted by the Director pursuant to this Article, upon a showing by the employer that an alternative program, method, practice, means, device or process will provide equal or superior safety for operators; and

(2) An exemption from a specific workstation standard, or rule or regulation adopted by the Director pursuant to this Article, upon a showing by the employer that it is technologically infeasible to comply with the workstation standard or rule or regulation for which the exemption is sought because the nature of the employer's business necessitates the use of specialized VDT or workstation equipment which is not readily available in conformance with the standard, rule or regulation, and the use of conforming equipment would adversely affect the task or work operations. An exemption may be granted for a period of up to two years.

(b) Application. The employer of the place of employment for which the variance or exemption is sought may initiate a variance or exemption action by filing an application with the Department. An employer may file a single application and pay a single application fee for all variances and exemptions that the employer may seek at any one time at any one place of employment. The application shall be made in writing upon forms prescribed by the Department and shall contain or be accompanied by all information required to assure the presentation of pertinent facts for proper consideration of the variance or exemption. The filing of the application for a variance or exemption shall stay the applicability of the workstation standard, rule or regulation for which the variance or exemption is sought. Before accepting any application for filing, the Department shall charge and collect an application fee. [See Section 1310.]

(c) Hearing. The Director of the Bureau of Toxics, Health and Safety Services (hereinafter referred to in this Article as "Bureau Director") shall hold a hearing on the application and shall hear the employer and other interested parties. The Bureau Director shall cause a notice of the time and place of the variance or exemption hearing to be mailed to the employer by certified mail at the address specified in the application at least 10 days prior to said hearing. The Bureau Director shall act upon each application within 90 days of receipt by the Department of the completed application. This time limit may be extended by written agreement executed by the Bureau Director and the applicant.

(d) Variance Findings. No variance shall be granted unless the Bureau Director finds and specifies in a written decision that in granting the variance, an equivalent level of safety will be provided through use of an alternative program, method, practice, means, device or process as is provided by the workstation standard or rule or regulation for which the variance is sought.

(e) Exemption Findings. No exemption shall be granted unless the Bureau Director finds and specifies in a written decision that it is technologically infeasible for the employer to comply with a workstation standard or a rule or regulation because the nature of the employer's business necessitates the use of specialized VDT or workstation equipment which is not readily available in conformance with the standard, rule or regulation for which the exemption is sought, and the use of conforming equipment would adversely affect the task or work operations.

(f) Notice to Operators. Immediately upon receipt of the notice of hearing, the employer shall provide notice of the application and hearing to affected operators and file a proof of service of the notice with the Department.

(1) If affected operators are not represented by an authorized employee representative, the employer shall post a copy of the notice of the hearing and a statement specifying where a copy of the variance or exemption application may be examined, at the place or places where notices to employees are usually posted.

(2) If affected operators are represented by an authorized employee representative, the employer shall provide a copy of the notice of the hearing and a statement specifying where a copy of the application may be examined, to the employee representative by postage-prepaid first class mail or by personal delivery.

(3) Proof of service shall be accomplished by filing an affidavit or declaration under penalty of perjury with the Department, certifying to the time and manner in which the notice was given.

(g) Decision. Upon issuing the written decision either granting or denying the variance or exemption in whole or in part, the Bureau Director shall forthwith transmit a copy of the decision to the employer by certified mail at the address specified in the application. It shall be a condition of the order that the employer shall give notice of the decision to affected operators by the same means used to inform them of the application and notice of hearing. The decision of the Bureau Director shall be final and shall become effective as stated therein, except upon the filing of a valid appeal to the Director of Public Health.

(h) Record. A record shall be kept of the pertinent information presented at the hearing on the variance or exemption and such record shall be maintained as part of the permanent public records of the Department of Public Health.

(i) Appeal. Within 30 days from the date the variance or exemption decision is mailed to the employer, the employer, affected operators or authorized employee representatives of the affected operators may appeal the decision, in writing, to the Director, setting forth in detail the ground or grounds for the appeal. Before accepting any application for appeal, the Department shall charge and collect an application fee. [See Section 1310.]

(j) Hearing on Appeal. The Director shall set a time and place for the hearing on the appeal and cause a notice of the time and place of the hearing to be mailed to the applicant by certified mail at the address specified in the application not later than 10 working days from the date the appeal was received by the Director. The hearing shall be conducted within 30 days from the date the appeal was received by the Director. The Director shall hear the applicant and other interested parties.

(k) Notice of Appeal to Operators, Employee Representatives, Employers. If the applicant on appeal is the employer, the applicant shall provide notice of the appeal application and hearing to affected operators as provided in Subsection (f), above. If the applicant is an affected operator or authorized employee representative, the applicant shall provide notice of the appeal and hearing to the employer by postage-prepaid first class mail or by personal delivery. Proof of service shall be accomplished by filing an affidavit or declaration under penalty of perjury with the Department, certifying to the time and manner in which the notice was given.

(l) Disposition of Appeal. After the hearing on the appeal, the director may affirm the original decision, may reverse the original decision or may modify the original decision. The Director shall forthwith transmit a copy of the decision to the applicant on appeal by certified mail at the address specified in the application. It shall be a condition of the order that the applicant shall give notice of the decision to affected operators, authorized employee representatives or the employer, as applicable, by the same means used to inform them of the appeal application and hearing.

(m) Record of Appeal. A record shall be kept of the pertinent information presented at the hearing on the appeal and such record shall be maintained as part of the permanent public records of the Department.

(Added by Ord. 405-90, App. 12/27/90)