Thanks to members who responded so quickly to our survey on child labor regulatory interpretation restricting the use of mechanical lifts by 16- and 17-year-old employees.  It is evident from the survey response that many of you are impacted by this rule change.  Lots of emails and discussions have occurred since last week with staff at the American Health Care Association (AHCA), other AHCA affiliates, and interested state stakeholders such as the Healthcare Education Industry Partnership and HealthForce Minnesota.  We have developed an issue paper on the topic that you can access HERE.  In addition, below are two written updates to this issue, first, an excerpt from a letter written by Minnesota Commissioner of Labor to the Deputy Administrator of the Wage and Hour Division at the U.S. Department of Labor and secondly, a legal opinion rendered from AHCA’s General Counsel on this topic.

Excerpt from August 30, 2010 Letter to U.S. Department of Labor from MN Commissioner Steve Sviggum:

Nancy, I have another issue that has arisen that hopefully can be resolved easily and quickly.  The issue comes from my heartfelt commitment to the chronologically gifted as well as my volunteer service on a Board of Directors at our local nursing home in Kenyon.  The Wage and Hour Division of the Federal Department of Labor (your division) recently ruled that employees under the age of 18 could not operate residential lifts in the moving of residents.  This new rule has serious consequences for health care providers, employees and for the persons receiving care themselves.

Nancy, this ruling is/would not be very wise as lifts are a very safe way of handling residents that we are actually encouraging from the State of Minnesota and the Department of Labor.  The 16- and 17-year-olds receive training and do important care giving work at facilities for the chronologically gifted.  In checking with our OSHA unit director, he stated that he knows of no health or safety reason that 17-year-old employees are unable to safely hurdle these lifts.  In fact, not using the lifts is a health/safety concern.  These lifts are not the heavy lifts/hoists used in many manufacturing facilities.

Would you look into this rule and its interpretation involving bed lifts and hopefully reverse the ruling or at least the extension of the rule to caregivers.

Legal Opinion Re:  New Child Labor Law/Use of Mechanical Lifts (9/8/10)

On August 27, 2010, AHCA/NCAL requested a legal opinion from our General Counsel, Reed Smith, on the Child Labor Law/Use of Mechanical Lifts issue to determine if:  a) our current strategy for fighting implementation of the regulation is sound; and b) we have any legal recourse.  Specifically, we asked Reed Smith to answer the following questions, and they have responded as follows:

1. Does the final rule apply to healthcare?  The Child Labor Law statute does apply to nursing, assisted living and developmental disabilities (DD) facilities.  However, the regulation provides us with the opportunity to “chip away” at the content in two specific ways:

• Patient lifts fall under the definition of “hoist” only and not “man lift.”  A man lift is a “device intended for the conveyance of persons . . . operating in a “substantially vertical direction.”  The regulatory text discusses “power driven hoists” throughout the document; leaving us with a good argument that “non-power driven hoists” are not included in the final regulation.
• The regulatory text discusses the prohibition of 16- and 17-year-olds “tending” hoists.  A review of this word within the context of the law means that 16- and 17-year-olds cannot “maintain order” or “direct” hoisting.  This leaves us with a good argument that 16- and 17-year-olds could assist in using a hoist if they are not overseeing or directing the activity.

2.  Is there room for a legal challenge of DOL’s interpretation of the final rule that 16 and 17 year olds cannot operate or assist with patient lifts?  The National Institute for Occupational Safety and Health (NIOSH) report, which is cited many times throughout the regulation, recommends the elimination of the exemption that permits 16- and 17-year-olds to operate a hoist.  Despite this recommendation, NIOSH offers no data justifying its rationale, and in several instances, the agency recommends that OSHA research this further to provide the appropriate data.  On those grounds, we could assert that there is no substantive basis for the regulation, but this is a difficult argument, and would likely take significant time.  We would have to be prepared to offer our own data to show that patient lifts do not place 16- and 17-year-olds in danger, and our profession may also end up appearing to support an ergonomics regulation, which largely requires use of lifts.  We have been on record expressing concern about such regulation due to patient rights regarding lifting, clinical appropriateness of mechanical lifts for patients, etc.  Besides a possible court challenge, there also is an option to seek an opinion letter, but this tactic would likely be unsuccessful, because AHCA/NCAL membership falls under the Child Labor Law statute.

3. Is there a valid relationship between the final rule and example # 8 in the DOL’s fact sheet, or has DOL essentially created regulation through a fact sheet?  Since AHCA/NCAL membership fall under the Child Labor Law statute and the regulation is written broadly, the DOL can get to the example in the Fact Sheet.  It should be noted that the Fact Sheet discusses “a power-driven patient hoist/lift,” which once again, leaves us with the opportunity to argue that the regulation does not apply to non-power driven lifts.  It should be noted, however, that a court would give deference to the regulation and not the Fact Sheet.

4. Can we challenge this through the regulatory process, or is statutory change required?  A meeting with DOL should be the first-line strategy.  Reed Smith agrees that AHCA/NCAL should “chip away” at the rule with the arguments discussed earlier (e.g., the regulation does not include non-power driven lifts and the definition of “tending” allows 16- and 17-year-olds to assist with hoists).  If AHCA/NCAL makes no progress with DOL after discussing the many policy considerations (e.g., elimination of younger workers in particular rural areas where there are severe staffing shortages could result in even worse scenarios; apprenticeship programs to increase the severe shortages in the LTC workforce are already being affected, etc.), then we should consider a legislative fix.  In a similar scenario, the retail food establishment was successful in convincing the legislature to allow 16- and 17-year-olds to use a bailer.

5. In the FLSA, did the “one ton hoist” issue ever apply to healthcare, or did it apply to other industries?  Reed Smith is still looking into this issue.

We expect to get a written opinion in the next couple of days with a more thorough explanation and citations.  We continue to reach out to DOL for a meeting, but as of yet, a meeting date has not been set.

Patti Cullen, CAE
952.851.2487
pcullen@careproviders.org

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