The Trump administration is rolling back a child labor rule for thousands of teenagers working in nursing homes and hospitals, eliciting a backlash from worker safety advocates.
The regulation targeted by the Labor Department, which was first implemented by the Obama administration, prohibits 16- and 17-year-olds from independently operating power-driven patient lifts, which are commonly used in nursing homes and hospitals to move patients with mobility challenges.
The administration took its first formal step toward undoing the regulation in late September, releasing a proposed rollback that cites an employer survey and letters from industry groups as evidence that the regulation is hurting job opportunities for young people in a field already facing major labor shortages.
But worker safety advocates and several Congressional Democrats contend that the Labor Department is relying on flimsy evidence, which they say undermines the legal basis for the department’s deregulatory push.
They say that the some of the administration’s justifications for the plan — revealed through a public records request and obtained by NBC News — do not support the administration’s own arguments. And they warn that the rollback will endanger young workers in an industry that already has a high injury rate, pointing to government research concluding that many 16- and 17-year olds “cannot safely operate power-driven hoists to lift and transfer patients by themselves.”
The Labor Department denied that its proposal would undermine worker safety, saying the change could add more than 23,000 young workers to the health care industry “and enhance their future career skills and their earning potential.”
Big device, fear of risks
The large lift devices include a boom that extends over the patient, who is placed inside a sling to be transported from a bed to a bathroom, for example. Accidents involving power lifts have resulted in serious injuries and deaths of patients, according to Food and Drug Administration records.
Penelope Shaw, 75, who lives in a nursing home in Massachusetts, lobbied the Trump administration to keep the existing protections, describing the risks of being transferred between her bed, a chair and the shower.
“I personally have had probably 300 incidents where the battery has failed, while I'm up in the air.... I doubt that 16- and 17-year olds have encountered lift emergencies, and could resolve them,” Shaw told the Office of Management and Budget by phone in August, according to her prepared remarks. “I'm also fearful teenagers would not respond to my direction in critical situations, putting me at risk of harm.”
About 56,000 teenagers ages 16 to 19 work as nursing, psychiatric or home health aides in the U.S., according to the Bureau of Labor Statistics.
“It makes it a lot more stressful when you have to work with machinery, and it involves putting somebody else in danger,” said Ariel LaRacuente, 17, who works as a youth labor advocate in Massachusetts and supports the existing protections for teenager workers. “You can’t expect somebody who’s so young to be able to take care of somebody and keep [them] from being hurt while using a power-driven lift.”
A question of evidence
The 2010 regulation originally prohibited all 16- and 17-year-olds from operating power lifts, but the following year, the Obama administration modified its guidance to allow the teens to operate the lifts if they work with a caregiver who is at least 18 years old, following recommendations from the National Institute for Occupational Safety and Health.
In the recent proposed change, the Labor Department said that a 2012 survey of Massachusetts vocational schools had found that “nearly 60 percent of respondents” said employers had told them that the safety rule was increasing burdens on their staff. Nearly a quarter of the vocational schools responding to the survey said that “students had to change jobs as a result” of the regulation, the administration added.
But the survey about the regulation had just 22 respondents, nearly half of whom had not seen or were not aware of the Labor Department’s 2011 memo describing the revised rule allowing teens to use the lifts under supervision, according to records obtained from the state of Massachusetts by the National Employment Law Project (NELP), a research and advocacy group.
Only five schools reported that students “had to change job duties” as a result of the regulation, according to a summary of the survey, which was conducted using SurveyMonkey, an online survey tool.
“The results are basically anecdotal,” said Debbie Berkowitz, director of NELP’s worker health and safety program and a former Obama Labor official. “There is no technical data that it will increase jobs but there is plenty of evidence that it will hurt young workers.”
Critics in Congress
Several House Democrats told Labor Secretary Alexander Acosta in a letter on Tuesday that they had serious concerns about the administration’s reliance on the survey to justify its regulatory rollback.
“The [Labor] Department’s reliance on this nonscientific survey may violate the Department’s data quality guidelines,” Rep. Bobby Scott, D-Va., wrote in the letter, which was co-signed by three other House Democrats. The letter asked Acosta to post the survey “and any other studies or data” that the Department was relying on.
Under federal law, agencies are prohibited from “arbitrary and capricious” policy changes, which must be based on reasoned analysis or face a potential legal challenge based on the Administrative Procedure Act.
The Labor Department said it had followed all the proper procedures in proposing its regulatory rollback, saying that it would “safely promote workforce development opportunities for youth, while still maintaining worker and patient safety,” according to Labor Department spokeswoman Megan Sweeney, who cited bipartisan support for the administration’s move.
Sweeney referred to complaints from both Democratic and Republican lawmakers, as well as industry groups, that the Obama-era regulation would make nursing home and hospital staffing shortages worse and actually pose a greater threat to teen worker safety by forcing them to lift patients manually.
To support its proposal, the administration included letters signed by Sen. Tammy Baldwin, D-Wis., former Rep. Michael Michaud, D-Me., and Sen. Amy Klobuchar, D-Minn., raising concerns about the restrictions and citing health care worker shortages.
But the American Industrial Hygiene Association, which represents occupational safety professionals, said in a letter sent on Thursday to the Labor Department that the evidence presented was inadequate.
“It would be irresponsible to place young workers at greater risk in an industry with one of the highest rates of injuries based upon a handful of letters and tangential anecdotes,” the group wrote, raising concerns that the Labor Department provided “no scientific evidence” for its proposed rollback.
The administration is accepting public comments on its proposal through Nov. 26. The Labor Department must respond to the comments before proceeding with the policy change.