Groups oppose DOL proposal to allow teens to operate powered patient lifts

Washington — Labor unions, the National Employment Law Project, and the National Council for Occupational Safety and Health are among the groups publicly opposing a Department of Labor proposed rule that would allow unsupervised 16- and 17-year-olds to operate powered patient lifts in hospitals, nursing homes or other long-term care facilities.

In a Nov. 29 letter sent to members of Congress, the organizations claim the proposed rule “will not increase any apprenticeship or employment opportunities for young workers, but rather, will endanger vulnerable workers as well as patients.”

DOL issued a notice of proposed rulemaking on Sept. 27 that called for a change to the Fair Labor Standards Act, which prohibits workers younger than 18 from performing certain hazardous jobs outside of the agricultural industry, but provides limited exemptions for apprentices and student learners under specific conditions.

The proposed rule would alter the Hazardous Occupations Orders under the FLSA to exempt power-driven patient lifts. DOL states that operating the equipment is “safer for workers than the alternative method of manually lifting patients,” and would benefit young workers in the health care industry. Teens seeking to learn the skill would need – according to federal or state regulations – at least 75 hours of training and at least 16 hours of supervision under a registered nurse who has at least two years of experience.

In a statement issued Dec. 3, Debbie Berkowitz, NELP program director for worker safety and health, criticized one piece of supporting evidence that DOL included in the NPRM: a 2012 Massachusetts Department of Public Health survey of vocational schools. The survey showed that “60 percent of respondents said that employers had commented about increased burdens due to restrictions on teens’ use of power-driven patients lifts” and that 23 percent of respondents had to change jobs because of the FLSA.

Berkowitz obtained the full survey results, which were not included in the NPRM, and provided a copy to Safety+Health. The survey was sent to 42 vocational programs, but 25 or fewer responded to 12 of the 15 multiple-choice questions. The median number of responses to the questions was 22.

When asked if they knew about the DOL policy on “the conditions under which hoists can be used by persons under the age of 18,” eight of 22 respondents said no and two answered they did not know.

“The results of this survey were that Massachusetts decided they need to educate votech programs and employers on the new policy – not that the new policy was not working,” Berkowitz wrote in an email to S+H.

In her statement, Berkowitz calls the survey results “flimsy and dubious evidence,” and concludes that “this survey provides no legal or factual basis for a change in the current policy, and NELP calls upon the Labor Department to withdraw this proposal.”

In their letter to Congress members, the groups highlight a 2011 NIOSH assessment that determined unsupervised use of powered lifts by 16- and 17-year-olds “would put them at increased risk for serious musculoskeletal injuries.”

The comment period on the NPRM ended Dec. 11. The American Health Care Association/National Center for Assisted Living, the Wisconsin Aging Advocacy Network, and LeadingAge are among the organizations supporting the change. Some commenters in favor of the proposed rule point to staffing shortages at health care facilities.