July 14, 2009

Mr. Maurice S. Joyce, President
Argosy Construction Management & Logistics, LLC
2345 Pine Island Court
Jacksonville, FL  32224-1168

Dear Mr. Joyce:

Thank you for your May 15, 2009 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP) regarding your question defining the difference between voluntary and non-voluntary use of a National Institute for Occupational Safety and Health (NIOSH) N-95 filtering facepiece respirator when employee exposure is below the permissible exposure limit.  We have paraphrased your question below followed by our response.  This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence.

Scenario: An employee is dry cutting concrete in an outdoor, well-ventilated environment that creates a small amount of dust that never approaches the permissible exposure limit (PEL), and the supervisor advises the employee to put a dust mask on.

Question: Does a supervisor advising an employee to put on a dust mask constitute non-voluntary (required) use even though the generated dust amount is below the PEL?

Reply: Respiratory protection is required when such equipment is necessary to protect the health of the employee or whenever respirators are required by the employer.  If an employer responsible for the safety and health of employees in a company requires a respirator to be worn in a particular area, even when airborne contaminants are determined to be below all OSHA PELs or other recognized exposure limits, any respirator use (including an N-95 dust mask) would not be considered voluntary. For this instance, a written respirator protection program meeting the requirements of 29 CFR 1910.134 would be required.  Since it was apparently the opinion of the supervisor that the dust generated from cutting concrete apparently is of concern, advising the employee to put on a dust mask would be considered required use.

If respiratory protection is not required and the employer did not advise the employee to use a dust mask, but the employee requested to use a dust mask, it would be considered voluntary use. Under these conditions, there would be no requirement to develop a written respiratory protection program; however, the employer would be responsible for providing the employee with a copy of Appendix D of 1910.134.

Thank you for your interest in occupational safety and health.  We hope you find this information helpful.  OSHA requirements are set by statute, standards and regulations.  Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations.  This letter constitutes OSHA's interpretation of the requirements discussed.  Note that our enforcement guidance may be affected by changes to OSHA rules.  Also, from time to time we update our guidance in response to new information.  To keep apprised of such developments you can consult OSHA's website at www.osha.gov.  If you have any questions, please feel free to contact the OSHA Office of Health Enforcement at 202-693-2190.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs