Continuing on its mission to deregulate worker protections, the Trump administration’s Wage and Hour Division of the Department of Labor has proposed a new rule that would allow 16- and 17-year-old nursing-home workers to operate power-driven patient lifting devices without any adult supervision or assistance, despite evidence that it is dangerous. These devices are used to lift and transfer patients out of their beds or a chair who cannot lift themselves.
Huh? You ask. Didn’t we settle the issue of child labor like a century ago? Don’t we have a government agency that researches the hazards of this kind of work?
The Wage and Hour Division of the Department of Labor — and not the Occupational Safety and Health Administration — is the agency tasked with determining what kind of work children can perform safely, under the child labor provisions of the Fair Labor Standards Act. The main rule is that if you are not yet 18, you are prohibited from being employed in occupations that have been declared hazardous by the Secretary of Labor. That seems pretty clear, until you ask what the Secretary of Labor considers to be “hazardous.” For example, is the use of power-driven hoists to lift and transfer patients in hospitals or nursing homes hazardous?
Good question. Wage and Hour didn’t have the expertise to decide, so when this issue first came up during the Obama administration, they went to the National Institute for Occupational Safety and Health for some help. And what did NIOSH say? According to Deborah Berkowitz at the National Employment Law Project:
Based on a review of the relevant scientific literature regarding evaluations of patient handling devices and biomechanical analyses, NIOSH has determined that many 16- and 17-year-old employees cannot safely operate power-driven hoists to lift and transfer patients by themselves . . . Independent use of power-driven hoists by 16- and 17-year-olds would put them at increased risk for serious musculoskeletal injuries. Moreover, the scientific literature indicates that most 16- and 17-year-old workers do not have the ability to properly assess the risks associated with using power-driven lifts.
OK, that sounds pretty clear. Which is why the Obama administration adopted, a common-sense enforcement policy mandating that if a 16- or 17-year-old caregiver is going to use a mechanical lift, he or she must have completed 75 hours of nurse’s aide training and must be assisted by an experienced caregiver who is at least 18 years old.
The Current Proposal
Despite the NIOSH recommendation and the current policy that seems to be working pretty well, the Labor Dept. has now proposed to rescind this enforcement policy, allegedly in order to expand apprenticeships for young workers.
With over 1.1 million jobs currently open in healthcare and social assistance, the U.S. Department of Labor today announced a proposal to allow younger Americans to safely develop critical skills for fast-growing jobs in healthcare.
New regulations need to be justified with hard evidence. Weakening those regulations also need hard evidence. Wage and Hour must consider all comments and evidence submitted before it issues the final rule. The agency is accepting comments on the proposal until Monday, Nov. 26. If you’re interested, you can submit comments here: www.regulations.gov/comment?D=WHD-2018-0002-0001.
Why are they deregulating and weakening these protections?
A bipartisan group of lawmakers and the regulated community have criticized the 2010 regulation on the grounds that it unnecessarily deprives youth of valuable skills development opportunities; exacerbates staffing shortages at healthcare facilities; delays the care patients receive; and causes youth to manually lift patients – even though using patient lifts is widely recognized as safer.
In other words, the Labor Dept. is bowing to industry pressure for cheap and compliant labor.