May 15, 1997

Mr. Michael A. Russo
President
Glass, Molders, Pottery, Plastics
& Allied Workers International Union
Local Union #77
890 Third Street
Albany, New York 12206

Dear Mr. Russo:

This letter is in response to your March 11 letter expressing disagreement with the Occupational Safety and Health Administration (OSHA) New York Regional Office's response to your respirator questions. However, we concur with Mr. Shapiro's response.

It appears from your first letter that the Permissible Exposure Limits (PELs) for Nuisance Dust are not being exceeded at the fiberglass facility you are discussing. This would indicate that the employer would not have to provide respiratory protection nor provide for any of the other requirements of a respirator protection program to comply with OSHA standards.

if employees do wear respirators on the job, even when the PEL is not being exceeded, various elements from the respirator standard apply, and the employer could become liable for violation of these OSHA standards. Even where employees provide their own protective equipment, the employer is responsible to assure its adequacy, proper maintenance, and sanitation. A determination should also be made of each user's medical fitness to wear a respirator. If the employer does choose to provide respirators when air contaminants are below the PEL, OSHA standards do not prohibit the employee from wearing a more protective respirator.

In several of its expanded standards, OSHA does require the employer to provide powered air-purifying respirators if requested by the employee and if it will provide adequate protection to the employee.

Powered air-purifying respirators (PAPR) usage has been discussed during rule making for a revised respiratory protection standard. The comments we received were not in support of allowing employees to request different types of respirator. It was felt that the employer or safety and health professional in charge of the respirator program was in the best position to assure that the appropriate respirator is chosen. PAPRs are noted for their ability to provide increased protection, easier breathing, and greater worker acceptance. These are factors that should be taken into account during respirator selection.

[This document was edited on 03/30/99 to strike information that no longer reflects current OSHA policy.]

In the absence of a potential overexposure, the decision to allow the employee to purchase and to use a personal PAPR respirator would be strictly a labor/management issue left to the employer and employee representatives, not OSHA.

Should you require any additional information on this matter, please contact [the Office of Health Enforcement at (202) 693-1681].

Sincerely,



John B. Miles, Jr., Director
Directorate of Compliance Programs



March 11, 1997

Mr. John Miles
Director
Directorates of Compliance Programs
OSHA
Room N3468
200 Constitution Avenue, NW.
Washington, DC 20210

Dear Mr. Miles:

Thank you for asking your New York Regional Office to provide a response to my letter of November 17, 1996, regarding respirator use (copy of response enclosed). We concur with the answer of our first question, that a respirator is not required when the worker's exposure to air contaminants is not in excess of OSHA's PELs.

We are not in agreement with the answer of the second question which states:

If the employee prefers to use an approved respirator which is more protective than the one required by OSHA (e.g., use a powered air-purifying respirator in lieu of a negative pressure respirator) and the employee has been trained on the use and maintenance of this respirator, does OSHA allow the employee to purchase and use this respirator at the workplace?

The response of your New York Region indicated that if a powered air-purifying respirator (PAPR) is required under statutory provisions of an OSHA standard, the PAPR should be provided based on employee preference. However, if there are no statutory provisions to provide a PAPR in lieu of an air-purifying respirator, the decision to allow the use of a more protective employee-purchased and -maintained PAPR is left to the employer and/or their representatives, or both, and not by OSHA (last paragraph on page 2).

We believe that employees should receive equal protection whether there are statutory provisions or not. OSHA mandates the use of a PAPR in lieu of a negative pressure respirator whenever the employee chooses to use this type of respirator and this respirator will provide adequate protection to the employee. This provision appears in many substance-specific health standards promulgated by OSHA, such as lead and cadmium. However, when there are no statutory provisions to provide a more protective respirator, your New York office shifts the decision of using a more protective respirator from the worker to the employer, even when the employer does not have to pay for the more protective respirator. It does not mean that more toxic substances for which OSHA has no statutory provisions are less hazardous to workers than those with statutory provisions.

We understand that OSHA's mandate is to protect the safety and health of workers. Why then does your New York Region take away the worker's decision to use a more protective respirator? Since the Occupational Safety and Health Act imposes no obligations or responsibilities on workers, we believe that OSHA should permit the worker to purchase and use a more protective, approved respirator if he/she has been trained in the use and maintenance of this device.

This question has also been raised by several other locals within the GMP, and the employers' policy will affect others nationwide. Since this issue is of national importance, we respectfully request that the OSHA National Office concur with our position that the Agency permits the worker to purchase and use an approved respirator which is more protective than the one required by OSHA (e.g., use a power air-purifying respirator in lieu of a negative pressure respirator) provided that he/she has been trained in the use and maintenance of this respirator.

I would appreciate your timely response to our request.

Sincerely yours,



Michael A. Russo
GMP LU #77 President

[Corrected 11/28/2006]