DOL scraps proposal to allow teens to use powered patient lifts in health care settings

Washington — The Department of Labor has withdrawn its proposal to allow 16- and 17-year-olds to operate powered patient lifts in hospitals, nursing homes or other long-term care facilities, according to DOL’s regulatory agenda for Fall 2019 – released Nov. 20.

The Fair Labor Standards Act 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. In a notice of proposed rulemaking published in September 2018, DOL sought to alter the Hazardous Occupations Orders under the FLSA to exempt the use of power-driven patient lifts by teen workers in the health care industry.

The proposed rule would have required teens to have – 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.

Lawmakers and other opponents pointed to a 2011 NIOSH report that concluded “many 16- and 17-year-old employees cannot safely operate power-driven hoists to lift and transfer patients by themselves” and recommends that two caregivers operate the lifts to move patients.

Another criticism was one item of “supporting evidence” in the NPRM: a 2012 Massachusetts Department of Public Health survey of vocational schools. The survey showed that “60% of respondents said that employers had commented about increased burdens due to restrictions on teens’ use of power-driven patients lifts” and that 23% of respondents had to change jobs because of the FLSA.

Debbie Berkowitz, program director for worker safety and health at the National Employment Law Project, 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 a Jan. 25 response to a letter from lawmakers, DOL Inspector General Scott Dahl said that his office was “reviewing the integrity of the rulemaking process” at OSHA and the department.

“Big win today as @USDOL backed down from its misguided rollback of child labor protections, which would have let 16 and 17 year olds use patient lifts without proper training and supervision,” Rep. Rosa DeLauro (D-CT) tweeted Nov. 20. “Thank you to the workers, advocates, and my colleagues for never giving up the fight.”