Variances to the OHS Regulation
The Occupational Health and Safety Regulation contains legal requirements that must be met by all workplaces under the inspection jurisdiction of WorkSafeBC. However, it may not always be possible for a workplace party to comply with a particular regulatory requirement in certain workplaces or while conducting certain work processes.
In such cases, WorkSafeBC may issue a variance to the requirement if there is an alternative way to ensure worker health and safety in these circumstances. A variance may be granted to an applicant through an order under the authority of the Workers Compensation Act (Part 3, Division 9). The order would include special terms and conditions that describe how a workplace party would be permitted to follow an alternative way to comply with the Regulation.
WorkSafeBC will consider issuing a variance if an applicant's proposed alternative to a regulatory requirement ensures health and safety and meets at least one of the following two criteria:
- Provides protection for workers equal to or greater than the protection established by the provision to be varied, or
- Has substantially the same purpose and effect as the provision to be varied. A variance may be proposed in regards to a specified workplace or a specified work process.
Division 9 of the Workers Compensation Act sets out in detail the legal requirements that must be met in order for WorkSafeBC to consider granting a variance.
To apply for a variance you need to provide a written proposal that includes the following information:
- A description of the requested variance
- The type and nature of the work process
- The regulatory provision(s) proposed for modification
- A detailed justification for the request, including reasons why it is not reasonable for the applicant to comply with the regulatory provision
- A description of the proposed alternative procedure or practice, and how it would provide an equivalent level of health and safety to that provided for by the regulatory provision(s)
- Information on the benefits and drawbacks of the variance proposal
- Explanation of how workers will be trained and supervised
- Confirmation that you have provided proper notice of the application for variance as required
- Applicant’s contact information, including company name, contact person, phone and fax numbers, and WorkSafeBC employer number if available
- Contact information for parties that may be affected by the variance
Send your signed application by mail, fax, or email to the WorkSafeBC Regulatory Practices department (see Who do I contact for more information?).
Wherever possible, applications should be submitted well in advance of when decisions are needed, as applications can take up to several months to review.
When making an application for a variance, you are also required to:
- Post a copy of the application at the workplace where the variance would apply and keep it there until you receive the decision on the application for variance
- Provide a copy of the application to the joint health and safety committee at the workplace or the worker health and safety representative as applicable
- Send a copy to the union if workers at the workplace are represented by a union
If you requested the variance to apply to a workplace that does not yet exist, you will be required to make other provisions for providing notice of the application.
Any directives or advice issued by the Board prior to the enactment of Part 3 of the Workers Compensation Act in 1999, relating to variances or exceptions to any regulatory requirement of the Occupational Health and Safety Regulation or the predecessor (Industrial Health and Safety Regulations), whether verbally or in writing, are of no force and effect, since the enactment of Part 3 of the Act.
This means that all requirements of the current OHS Regulation must be complied with unless a request to follow an alternative approach has specifically been granted to a person who has made application for a variance under Division 9 of the Act, in accordance with the variance process set out therein. Anyone wishing to rely on an alternative approach to a requirement under the OHS Regulation must follow the variance process noted above. To assist in understanding when a variance may be needed, WorkSafeBC provides interpretations of the OHS Regulation in the OHS Guidelines.
Prevention officers will not accept any documentation relating to previous advice or interpretations relating to variances to regulatory requirements. Only those variances that have been documented and provided to persons under the Act through the variance process will be accepted.
Before making a decision, WorkSafeBC consults with persons who may be affected by a variance. These parties typically include unions representing affected workers and the joint health and safety committee or worker health and safety representative.
WorkSafeBC may contact you for information on the identity of affected parties and other necessary information if it is not clear from your application.
WorkSafeBC will issue a decision to you in writing, either issuing a variance order or rejecting the variance application. WorkSafeBC will also send copies of the decision to any affected parties who submitted information in the consultation process.
WorkSafeBC Prevention Practices and Quality
PO Box 5350 Stn Terminal
Vancouver BC V6B 5L5
Toll-free: 1.888.621.7233, local 8644