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OHS Variances: The Alternative to Complying with OHS Regulations

Date First Published on OHS Insider: September 8th, 2009
Topics: Compliance |

Employers must always comply with the requirements spelled out in the OHS laws.
Period.  No if’s, and’s or but’s.

That statement is true most of the time. But not always. There are some limited situations where a company may be able to avoid doing precisely what the law says without committing a violation. These situations arise when compliance with a particular regulation isn’t possible because of the specific circumstances of your workplace or you think you have a better way to perform a certain process and still adequately protect workers.

If you find yourself in one of the above situations, your company might be able to comply with the requirement in a way not spelled out in the law—or even avoid complying with the requirement altogether. But there’s a significant catch: In most territories and provinces, you must get written permission from the agency that enforces the OHS laws not to obey the literal terms of the law and/or implement an alternate measure instead.

This article will tell you what provincial and territorial OHS laws require employers to do to get an exemption or variance. Then it’ll show you how to navigate your way through that process. And there’s a chart on spelling out the exemption or variance requirements for each province and territory.

Defining Our Terms
The jurisdictions that grant exceptions from the obligation to comply with the literal terms of OHS requirements use different terms to describe them, including variances, acceptances, modifications, substitutions, exemptions and deviations. In this article, we’ll use the term “exemption” to refer to a complete exclusion from compliance with an OHS requirement and “variance” to refer to permission to use an alternate method to comply with an OHS requirement.

WHAT THE LAW SAYS

The rules for getting an exemption or variance are typically set out in the jurisdiction’s OHS statute (i.e., its OHS “Act”). There are three basic approaches:

1. Application Required
In nine jurisdictions—AB, BC, MB, NB, NL, NS, PEI, SK and YT—employers must apply to the appropriate government official for an exemption or variance to an OHS requirement. And in each of these jurisdictions, that official may only grant the application if the proposed alternative provides workers with protection equal to or greater than that provided by the relevant requirement. But the nine application jurisdictions can be further divided into two camps:

Application process spelled out. The OHS laws in BC and NS spell out in detail the application process for securing an exemption or variance. For example, they specify the information that the employer must include in the written application for a variance.

Application process not spelled out. The OHS laws in AB, MB, NB, NL, PEI, SK and YT simply say that the employer must apply in writing to the appropriate official and spell out the circumstances under which that official may grant such applications. But the OHS laws don’t spell out specific application procedures. And they don’t provide any additional information on the application process in the form of official guidelines.

2. No Application Required
ON and QC are the only jurisdictions in which employers aren’t required to apply to the government for a variance; they can essentially grant variances for themselves. In certain cases, the OHS regulations that spell out specific workplace measures also leave open the possibility of using alternate measures, methods and materials that provide equivalent or greater health and safety protection to workers.

The ON OHS Act doesn’t have a general provision for exemptions and variances. But the Industrial Establishments Regulations say that the composition, design, size and arrangement of any material, object, device or thing may vary from the regulation’s requirements provided that the item’s strength, health and safety factors are equal to or greater than the regulation’s requirements. And the Construction Projects Regulations allow employers and constructors to vary measures, methods or materials required by the regulations as long as they provide protection of workers’ health and safety that’s equal to or greater than the measures, methods or materials required by the regulation.

As in ON, the QC OHS statute doesn’t have a general provision for exemptions and variances. But some of the requirements in the OHS regulations include language saying that employers can implement “equivalent safety precautions” instead of the measure spelled out in the regulation. For example, under the general QC OHS regulation, if installing a protective device on a machine would make operation of the machine “reasonably impractical,” the employer can forego installing the protective device, provided that it takes “precautions that ensure the equivalent safety of workers” [Regulation respecting occupational health and safety, Sec. 183].

3. No General Provision for Exemptions/ Variances
The Canada Labour Code and the OHS laws in NT and NU don’t provide for exemptions and variances. Exception: Under the Canada Labour Code, coal mines can apply to the Coal Mining Safety Commission for exemptions and variances and those applications may be granted as long as the protection of workers’ health and safety won’t be diminished.

HOW TO COMPLY

If your company is federally regulated or operates in NT or NU, you don’t have the option of applying for (or granting yourself) an exemption or variance (unless your company is federally regulated and runs a coal mine). So simply comply with the OHS regulations.

If your company is in one of the nine application jurisdictions, you may be able to get an exemption or variance for an OHS regulation. But how do you go about getting one? If you’re in BC or NS, the answer is simple: Just follow the procedure set out in the OHS statute. But what if your province or territory doesn’t spell out an application process?

Naturally, the procedural requirements for getting a variance in BC and NS aren’t binding outside those provinces. But the BC and NS requirements provide some guidance for you. For example, the information required on an application in those provinces is likely to be the same information a government official in your jurisdiction will want and need to decide your application. So providing this information in your application is wise and may even speed up the process.

In addition, BC and NS both require an applicant for a variance to post the application and decision in the workplace and give copies to the JHSC, safety representative and/or union. Since your workers are the ones who’ll be directly affected by the exemption or variance if it’s granted, consider doing the same in your workplace even if your company isn’t in BC or NS. Although your OHS laws may not specifically require you to keep workers and the JHSC informed, doing so is good policy.

So let’s look in detail at the steps of the BC and NS processes for applying for variances (Note: BC and NS don’t allow for exemptions):

Step #1: Include All Required Information in Application
The BC and NS OHS laws (and related guidelines) spell out exactly what information must be included in an application for a variance, such as: 

  • The location of the workplace;
  • Contact information for the company applying for the variance (the “applicant”) and anyone affected by the variance;
  • The type and nature of the work process;
  • The regulation from which the applicant wants a variance;
  • A description of the variance the applicant is requesting, i.e., what the applicant proposes to do in lieu of following the requirement set out in the regulation;
  • A statement as to why the applicant needs the variance, including why it isn’t reasonable or “practicable” for the applicant to comply with the requirement in the regulation;
  • Information on the benefits and drawbacks and potential impact on workers’ health and safety if the variance is granted;
  • Any technical information the government needs to evaluate the application;
  • How the applicant will train and supervise its workers as to the variance if it’s granted; and
  • Confirmation that the applicant gave proper notice of the application, i.e. that it posted the application in the workplace and gave copies to the JHSC, safety representative and/or union.

Step #2: Notify Workers of Application
In BC and NS, you must post the application for a variance (and the decision on that application) in the workplace. Posting the application for a variance or exemption in the workplace notifies workers and other relevant parties that you’ve asked for permission not to comply with a certain OHS requirement and gives them an opportunity to provide input on the application. And given the JHSC’s role in protecting workers’ health and safety, it’s only appropriate that you give it a copy of the application. In fact, in practice, it’s probably a good idea to involve the JHSC in deciding whether to seek an exemption or variance in the first place and, if so, in applying for one. Finally, posting the decision lets people know how things turned out and whether the way they perform a certain process will now be changed to reflect the variance or exemption.

Insider Says: Government officials in most jurisdictions may consult any parties they deem appropriate, including workers, supervisors and technical experts. So even if you don’t notify workers and the JHSC about your application, the government may do so anyway.

Step #3: Ensure Compliance with the Variance
If your application is granted, the variance effectively replaces the OHS regulation’s requirements. So you must tell workers about the variance, train them, if necessary, on its requirements and ensure that they comply with those requirements. Failure to comply with the terms of the variance could not only result in losing the variance but also lead to liability for an OHS violation.

Companies in ON and QC
What if your company is in ON or QC? Even though you don’t have to apply to the government for a variance, you may still need to comply with certain requirements. For example, in ON, an employer or constructor must give advance written notice of any varied measure or procedure it intends to use to the JHSC or safety representative. Failure to comply with such requirements could expose the company to liability.

Example: During a routine inspection of an Ontario construction project, an MOL inspector observed that there were no guardrails in several places on the perimeters of the second, third and fourth storeys. Workers had access to the unguarded perimeters and so faced a potential fall hazard. The constructor, its supervisor, the employer and its supervisor were charged with OHS violations.

The court found all the defendants guilty. The court ruled that the burden was on the defendants to prove that they’d used an acceptable alternate method to protect workers from falling. Here, it wasn’t clear whether there were barriers in place that were set back from the perimeters of the floors in question. But even if such barriers were used, the court noted that there was no evidence that this “varied” alternate method had ever been submitted to the JHSC [R. v. Bradsil 1967 Ltd.].

Also, consider following the steps outlined above. If you grant yourself a variance and are later charged with violating the relevant OHS regulation, it’ll be easier to prove due diligence if you can show that you weighed the health and safety consequences and gave the workers, JHSC and/or union an opportunity to provide input on the variance.

Conclusion
The principle that laws must be obeyed just the way they’re written has been beaten into our heads. So the possibility that it might actually be legal to protect the health and safety of workers in a way that differs from the methods spelled out in the OHS laws may not occur to you. But that possibility does exist in most parts of Canada and, if you’re a safety coordinator, you need to know about that possibility and when and how to use it to your advantage.

However, exemptions and variances are rare. In most cases, the OHS requirements reflect the best way to protect workers. But be aware that there may be times when there is a better way to protect workers or when compliance with a certain requirement simply isn’t possible in your workplace. If getting an exemption or variance is a viable option, you must ensure that the proposed alternative provides at least equivalent if not greater protection to workers than would be required under OHS laws. And you also need to understand and ensure that your company follows the appropriate procedures when applying for the exemption or variance.

SHOW YOUR LAWYER
R. v. Bradsil 1967 Ltd., [1994] O.J. No. 837, April. 28, 1994

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