1. Any employer may apply to the Administrator for a temporary order granting a variance from a standard which has been adopted pursuant to this chapter but has not become effective. The temporary order may be granted only if the employer files an application which meets the requirements of subsection 2 and, after notice to the affected employees and an opportunity for a hearing, establishes that: (a) The employer will not be able to comply with the standard by its effective date because of the unavailability of necessary professional or technical personnel or materials and equipment or because necessary construction or alteration of facilities cannot be completed by that date; (b) The employer is taking all available steps to safeguard his or her employees against the hazards covered by the standard; and (c) The employer has a program which will bring the working conditions into compliance with the standard as quickly as practicable. 2. The application for such a temporary order must contain: (a) A specification of the standard or portion thereof from which the employer seeks a variance; (b) 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 standard or portion thereof and a detailed statement of the reasons therefor; (c) A statement of the steps the employer has taken and will take, with specific dates, to protect employees against the hazard covered by the standard; (d) A statement of when the employer expects to be able to comply with the standard and what steps the employer has taken and what steps the employer will take, with dates specified, to come into compliance with the standard; and (e) A certification that the employer has informed his or her employees of the application by giving a copy thereof to their authorized representative, 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 must be contained in the certification. The information to employees must also inform them of their right to petition to the Administrator for a hearing.
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