[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)]
[Proposed Rules]
[Pages 48737-48748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20996]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 570
RIN 1235-AA22
Expanding Employment, Training, and Apprenticeship Opportunities
for 16- and 17-Year-Olds in Health Care Occupations Under the Fair
Labor Standards Act
AGENCY: Wage and Hour Division, Department of Labor.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Department of Labor (Department) is proposing this rule to
enhance employment, training, and
[[Page 48738]]
apprenticeship opportunities for 16- and 17-year-olds in health care
occupations in the United States while maintaining worker safety. The
changes proposed in this rule also respond to the concerns of a
bipartisan, bicameral group of congressional lawmakers. The youth-
employment provisions of the Fair Labor Standards Act (FLSA) ensure
that when youth work, the work is safe and does not jeopardize their
health, well-being, or education. Pursuant to those provisions, 16- and
17-year-old employees generally cannot work in a nonagricultural
occupation governed by any of the Department's Hazardous Occupations
Orders (HOs). HO 7 prohibits youth from working in occupations
involving the operation of a power-driven patient lift. Patient lifts,
however, substantially differ in form and function from the other
equipment that the HO governs, including forklifts, backhoes, cranes,
and other heavy industrial equipment. Additionally, patient lifts are
safer for workers than the alternative method of manually lifting
patients. In response to significant public input and bipartisan,
bicameral requests from Members of Congress, the Department proposes to
remove the operation of power-driven patient lifts from the list of
activities that HO 7 prohibits. This proposal, if finalized, would
increase the participation of young workers in health care occupations
and enhance their future career skills and their earning potential,
without reducing worker safety.
DATES: Submit written comments on or before November 26, 2018.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1235-AA22, by either of the following methods:
Electronic Comments: Submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. Follow the instructions for
submitting comments. Mail: Address written submissions to Division of
Regulations, Legislation, and Interpretation, Wage and Hour Division,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW,
Washington, DC 20210. Instructions: Please submit only one copy of your
comments by only one method. All submissions must include the agency
name and RIN, identified above, for this rulemaking. Please be advised
that comments received will become a matter of public record and will
be posted without change to http://www.regulations.gov, including any
personal information provided. All comments must be received by 11:59
p.m. on the date indicated for consideration in this rulemaking.
Commenters should transmit comments early to ensure timely receipt
prior to the close of the comment period, as the Department continues
to experience delays in the receipt of mail. For additional information
on submitting comments and the rulemaking process, see the ``Public
Participation'' heading of the supplementary information section of
this document. For questions concerning the interpretation and
enforcement of labor standards related to the FLSA, individuals may
contact the Wage and Hour Division (WHD) local district offices (see
contact information below). Docket: For access to the docket to read
background documents or comments, go to the Federal eRulemaking Portal
at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Melissa Smith, Division of
Regulations, Legislation, and Interpretation, Wage and Hour Division,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW,
Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-
free number). Copies of this proposed rule may be obtained in
alternative formats (Large Print, Braille, Audio Tape or Disc), upon
request, by calling (202) 693-0406 (this is not a toll-free number).
TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information
or request materials in alternative formats. Questions of
interpretation and/or enforcement of the agency's regulations may be
directed to the nearest WHD district office. Locate the nearest office
by calling WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243)
between 8 a.m. and 5 p.m. in your local time zone, or log onto WHD's
website for a nationwide listing of WHD district and area offices at
http://www.dol.gov/whd/america2.htm.
Electronic Access and Filing Comments: This proposed rule and
supporting documents are available through the Federal Register and the
http://www.regulations.gov website. You may also access this document
via WHD's website at http://www.dol.gov/whd/. To comment electronically
on Federal rulemakings, go to the Federal eRulemaking Portal at http://www.regulations.gov, which will allow you to find, review, and submit
comments on Federal documents that are open for comment and published
in the Federal Register. You must identify all comments submitted by
including ``RIN 1235-AA22'' in your submission. Commenters should
transmit comments early to ensure timely receipt prior to the close of
the comment period (11:59 p.m. on the date identified above in the
DATES section); comments received after the comment period closes will
not be considered. Submit only one copy of your comments by only one
method. Please be advised that all comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
The youth-employment provisions of the FLSA ensure that when youth
work, the work is safe and does not jeopardize their health, well-
being, or education.\1\ Pursuant to those provisions, 16- and 17-year-
old employees generally cannot work in a nonagricultural occupation
governed by any of the Department's HOs. As relevant to this proposal,
HO 7 prohibits 16- and 17-year-old employees from working in
occupations involving the operation of a power-driven hoisting
apparatus.\2\ The Department originally issued HO 7 in 1946. It
primarily covers devices used in industrial contexts, such as
forklifts, backhoes, and cranes--which, as discussed below, differ both
in form and function from patient lifts. When originally enacted, HO 7
contained an exemption for electric or air-operated hoists not
exceeding a one-ton capacity. HO 7 therefore did not encompass power-
driven patient lifts used to transport patients and residents in
medical settings such as hospitals, nursing homes, and long-term care
facilities. In 2010, however, the Department amended HO 7 to, in part,
eliminate the longstanding exemption for electric or air-operated
hoists not exceeding a one-ton capacity. As a result, HO 7 now
encompasses power-driven patient lifts. Power-driven patient lifts,
however, are far less dangerous to workers than the alternative of
manual patient lifting, which causes a significant number of worker
injuries. Power-driven patient lifts are different in form and function
from the other kinds of machines listed in HO 7. Typically speaking,
power-driven patient lifts do not have nearly the same size, power,
mass, speed, or complexity as many of those other machines; they are
used in health care rather than industrial facilities; and from 2012 to
2016 only 1 worker fatality was attributed to a patient hoist or
lifting harness, in comparison to 930 worker fatalities associated with
cranes, overhead hoists, bucket or basket hoists, manlifts, and
forklifts.
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\1\ See generally 29 U.S.C. 203(l), 212, 213(c).
\2\ 29 CFR 570.58(a).
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After the 2010 expansion of HO 7, numerous stakeholders asked the
Department to reconsider the HO's
[[Page 48739]]
inclusion of patient lifts because, among other things, it severely
restricts employment opportunities for 16- and 17-year-olds in the
health care industry and the alternative of manually lifting patients
is more dangerous to workers than the use of powered lifts. Those
stakeholders voicing concerns and requesting changes to HO 7 included
multiple members of the Senate and House of Representatives from both
political parties. In response to this public input, the Department
issued a nonenforcement policy in 2011, specifying that it would not
assert a violation of HO 7 when a trained 16- or 17-year-old, under
certain specified conditions, assists a trained adult in the operation
of patient lifts. The Department, however, has continued to hear
concerns from the public and a bipartisan group of legislators that 16-
and 17-year-olds' inability to independently operate such devices
decreases their employment and training opportunities in health care
occupations; often necessitates those who work in such occupations to
manually lift patients--a practice that is more dangerous than using a
patient lift; and, in some cases, hinders health care providers'
ability to care for patients due to a lack of staff available to timely
move patients. Given these and other considerations outlined below, the
Department is proposing to enhance employment, training, and
apprenticeship opportunities for 16- and 17-year-olds in health care by
excluding power-driven patient lifts from the scope of HO 7.
This proposed rule is expected to be an Executive Order (E.O.)
13771 deregulatory action. Details on the estimated cost savings of
this proposed rule can be found in the rule's economic analysis.
II. Need for Rulemaking
An important task in health care occupations, particularly in
facilities that care for the elderly and disabled, is the safe handling
and moving of patients. Without patient lifts, health care personnel
sometimes manually lift patients who cannot transport themselves. Such
practices can lead to musculoskeletal disorders, such as muscle strains
and lower back injuries, among manual lifters. Among health care
occupations, 40 percent of injuries resulting in days away from work
are caused by overexertion or bodily reaction, which includes motions
such as lifting, bending, or reaching--motions related to patient
handling.\3\ In contrast, the use of mechanical lifting equipment, such
as powered patient lifts or hoists, has been shown to reduce exposure
to manual lifting injuries by up to 95 percent.\4\ Because powered
patient lifts significantly reduce the risk of musculoskeletal
disorders compared to manual lifting, many facilities encourage or
require their use. Since 2010, however, HO 7 has prohibited 16- and 17-
year-old youth from operating power-driven patient lifts.\5\
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\3\ Bureau of Labor Statistics, Nonfatal cases involving days
away from work: Selected characteristics (2011 forward), https://data.bls.gov/PDQWeb/cs.
\4\ U.S. Dep't of Labor, Occupational Safety & Health Admin.,
Safe Patient Handling: Preventing Musculoskeletal Disorders in
Nursing Homes, https://www.osha.gov/Publications/OSHA3708.pdf.
\5\ 29 CFR 570.58(b).
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After hearing significant concerns about the application of HO 7 to
power-driven patient lifts from members of the public and a bipartisan
group of elected officials, the Department issued a non-enforcement
policy in 2011 that applies when trained 16- and 17-year-olds, under
specified conditions, assist a trained adult in the operation of
patient lifts.\6\ The nonenforcement policy, however, does not permit
these youth to operate patient lifts independently. The Department has
received correspondence and other feedback that this continued
prohibition adversely affects the ability of youth to receive
employment and training opportunities in health care professions,
encourages youth who work in health care to engage in unsafe manual
lifting, and hampers health care providers' ability to promptly and
safely assist patients. The authors of this correspondence have also
stated that, in their experience, 16- and 17-year-olds are capable of
operating patient lifts safely.
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\6\ See U.S. Dep't of Labor, Wage & Hour Div., Field Assistance
Bulletin 2011-3, July 13, 2011, https://www.dol.gov/whd/FieldBulletins/fab2011_3.pdf; see also Field Operations Handbook
(FOH) 33h07(e)(5), https://www.dol.gov/whd/FOH/FOH_Ch33.pdf.
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This information, as well as other information discussed below,
suggests that the operation of power-driven patient lifts may not be
particularly hazardous to youth employed in health care occupations or
detrimental to their health or well-being. The Department, therefore,
proposes to exclude the operation of power-driven patient lifts from
the list of prohibited devices under HO 7. The Department seeks public
comment on this proposal, and, specifically, whether the operation of
power-driven patient lifts is particularly hazardous to 16- and 17-
year-olds or is otherwise detrimental to their health or well-being.
The Department expects that, if adopted in a final rule, the
proposed amendment to HO 7 will encourage the creation of more
employment, apprenticeship, and other training opportunities in health
care by removing a regulatory restriction that bars 16- and 17-year-
olds from operating power-driven patient lifts, a foundational job duty
in the health care industry. The Department recognizes the importance
of providing young people with opportunities to safely train and work
in rewarding and meaningful health care careers. The Department also
recognizes that regulatory restrictions on youth operating power-driven
patient lifts may unnecessarily impede training and employment
opportunities for youth interested in pursuing careers in this fast-
growing field.
Early employment and training opportunities can teach 16- and 17-
year-olds workplace safety, responsibility, organization, and time
management. These opportunities can also help them establish good work
habits, gain valuable experience, expand their networks, and achieve
financial stability. Research confirms the many advantages of working
during high school--especially for low-income youth--including higher
employment rates, higher wages in later years, and a lower probability
of dropping out of high school.\7\ Part-time work during high school
correlates with more schooling and work after high school graduation,
and also correlates with the receipt of a college degree.\8\
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\7\ Marta Tienda and Avner Ahituv, Ethnic Differences in School
Departure: Does Youth Employment Promote or Undermine Educational
Achievement? Kalamazoo, Michigan: Upjohn Institute (1996), http://research.upjohn.org/up_bookchapters/564/ (last visited on 26 April
2018).
\8\ Staff, J., & Mortimer, J.T. (2007). Educational and Work
Strategies from Adolescence to Early Adulthood: Consequences for
Educational Attainment. Social Forces; a Scientific Medium of Social
Study and Interpretation, 85(3), 1169-1194, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1858630/ (last visited on 26
April 2018).
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Opportunities for youth employment can be particularly helpful in
reducing the number of youth who become disconnected from school or
work. A 2012 study found that each young person who ``disconnects''
from school or work costs the economy an estimated $704,020 over their
lifetime due to lost earnings, lower economic growth, lower tax
revenues, and higher government spending.\9\ Many young people lose
their connection to school and work at ages 16 and 17, when high-school
dropout and unemployment rates are highest. Early employment and
training opportunities can benefit these youth
[[Page 48740]]
and improve their future employment prospects. In a survey commissioned
by the Bill and Melinda Gates Foundation, for example, 81 percent of
high school dropouts surveyed reported that having real-world
experiences that connected school with work would have helped keep them
in school.\10\ One such program, Career Academies, was shown to
increase earnings by 11 percent for as many as eight years after high
school.\11\
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\9\ Clive Belfield, Henry M. Levin, & Rachel Rosen, The
Economic Value of Opportunity Youth (2012), at 2, http://www.civicenterprises.net/MediaLibrary/Docs/econ_value_opportunity_youth.pdf.
\10\ John M. Bridgeland, John J. DiIulio, Jr., and Karen Burke
Morison, The silent epidemic: Perspectives of high school dropouts
(2006), at 13, http://files.eric.ed.gov/fulltext/ED513444.pdf.
\11\ Harry Holzer, Workforce Training: What Works? Who Benefits?
Wisconsin Family Impact Seminars, 2014, https://www.purdue.edu/hhs/hdfs/fii/wp-content/uploads/2015/07/s_wifis28c02.pdf (last visited
on April 26, 2018).
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Consistent with the President's E.O. on expanding apprenticeships
in the United States,\12\ the Department is interested in promoting
workforce training program models in health care that offer safe and
impactful apprenticeship opportunities. Apprenticeships in high-growth,
emerging sectors, such as health care, can yield significant benefits.
Research has found, for example, that apprenticeships can lead to
better workplace performance, higher wages, reduced worker turnover,
and portable occupational credentials. The average starting wage for
apprentices is $15.00 per hour, and wages increase as apprentices gain
skills and knowledge.\13\ A study of a cross-section of apprenticeships
by Mathematica Policy Research found that participants who participated
in an apprenticeship program earned, on average, nearly $100,000 more
over their careers than nonparticipants did. For those apprentices who
completed their program, the average earnings premium was more than
$240,000.\14\
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\12\ E.O. 13801 of June 15, 2017, Expanding Apprenticeships in
America, 82 FR 28229 (Jun. 15, 2017).
\13\ U.S. Dep't of Labor, ApprenticeshipUSA Toolkit, Frequently
Asked Questions, https://www.dol.gov/apprenticeship/toolkit/toolkitfaq.htm#2b.
\14\ Debbie Reed, Albert Yung-Hsu Liu, Rebecca Kleinman,
Annalisa Mastri, Davin Reed, Samina Sattar, and Jessica Ziegler, An
Effectiveness Assessment and Cost-Benefit Analysis of Registered
Apprenticeship in 10 States, Mathematica Policy Research (July
2012), at xiv, https://wdr.doleta.gov/research/FullText_Documents/etaop_2012_10.pdf.
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The need for safe employment, apprenticeship, and training
opportunities for youth is particularly acute in health care, which is
among the fastest growing industries in the United States.\15\ The
Bureau of Labor Statistics (BLS) projects that numerous professions in
health care will grow either faster or much faster than the national
average growth rates in the next decade.\16\ There are already
approximately 1 million job openings in health care and social
assistance.\17\ According to a National Federation of Independent
Business poll of its members, the top two reasons that employers did
not hire applicants were lack of experience and lack of job-specific/
occupational skills.\18\ This further underscores the need for early
employment, training, and apprenticeship opportunities--which help
close the skills gap between the skills employers seek and the skills
job seekers currently have. Removing unnecessary barriers to entry for
youth in health care will give them more opportunities to gain those
critical skills. Many jobs in health care, such as certified nursing
assistant (CNA) positions, present excellent entry-level positions for
young workers, including teens still in high school who seek to begin a
career in health care. There are also numerous apprenticeable
occupations in health care, such as certified nurse aide, home health
aide, rehabilitative aide, licensed practical nurse, and CNA.\19\ To
help ensure that those who need care can receive it from workers who
are skilled, qualified, and familiar with continuing advances in
technology and service delivery, federal regulations should encourage,
and not unnecessarily hinder, opportunities for younger workers to
pursue careers in health care.
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\15\ Projected annual growth for health care and social
assistance is 1.9% through 2026. Bureau of Labor Statistics,
Employment Projections: Employment by major industry sector, https://www.bls.gov/emp/ep_table_201.htm.
\16\ See Bureau of Labor Statistics, Occupational Outlook
Handbook, https://www.bls.gov/ooh/healthcare/home-health-aides-and-personal-care-aides.htm (home care and personal care aides projected
to grow 41 percent); https://www.bls.gov/ooh/healthcare/licensed-practical-and-licensed-vocational-nurses.htm (licensed practical
nurses and licensed vocational nurses projected to grow 12 percent);
https://www.bls.gov/ooh/healthcare/medical-assistants.htm (medical
assistants projected to grow 29 percent); https://www.bls.gov/ooh/healthcare/nursing-assistants.htm (nursing assistants projected to
grow 11 percent); https://www.bls.gov/ooh/healthcare/physical-therapist-assistants-and-aides.htm (physical therapist assistants
and aides projected to grow 30 percent); https://www.bls.gov/ooh/healthcare/occupational-therapists.htm (occupational therapists
projected to grow 24 percent); https://www.bls.gov/ooh/healthcare/physical-therapists.htm (physical therapists projected to grow 28
percent); https://www.bls.gov/ooh/healthcare/occupational-therapy-assistants-and-aides.htm (occupational therapy assistants and aides
projected to grow 28 percent).
\17\ Bureau of Labor Statistics, Table A. Job openings, hires,
and total separations by industry, seasonally adjusted, https://www.bls.gov/news.release/jolts.a.htm (last visited May 7, 2018).
\18\ Nat'l Fed. Of Independent Business, Filling the Role,
https://www.nfib.com/assets/nfib_fillingtherole3-1.pdf.
\19\ For a full list of apprenticeable occupations, see https://www.doleta.gov/OA/occupations.cfm.
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III. Background
The youth employment provisions of the FLSA, which Congress enacted
in 1938, ensure that when young people work, the work is safe and does
not jeopardize their health, well-being, or educational opportunities.
The FLSA distinguishes between youth employed in agricultural work and
youth employed in nonagricultural work. FLSA section 203(l) establishes
a minimum age of 16 years for nonagricultural employment and prohibits
16- and 17-year-olds from working in any occupation that the Secretary
of Labor (the Secretary) has found to be particularly hazardous or
detrimental to their health or well-being. Under this authority, the
Secretary has issued 17 HOs for nonagricultural employment.
HO 7, originally issued on July 16, 1946, prohibits 16- and 17-
year-old employees from working in occupations involving a power-driven
hoisting apparatus.\20\ It prohibits 16- and 17-year-old employees from
``operating, tending, riding upon, working from, repairing, servicing,
or disassembling an elevator, crane, derrick, hoist, or high-lift
truck, except operating or riding inside an unattended automatic
operation passenger elevator.'' \21\ It also prohibits such employees
from ``operating, tending, riding upon, working from, repairing,
servicing, or disassembling a manlift or freight elevator, except 16-
and 17-year-olds may ride upon a freight elevator operated by an
assigned operator.'' \22\ For purposes of these prohibitions,
``[t]ending such equipment includes assisting in the hoisting tasks
being performed by the equipment.'' \23\ The 1946 study that supported
these prohibitions concluded that operating hoisting apparatus is
``inherently dangerous because it involves complicated mechanical
equipment and because of the ever-present danger of falling or being
struck by falling material should the load be dropped.'' \24\
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\20\ 29 CFR 570.58(a).
\21\ Id.
\22\ Id. Sec. 570.58(a)(2).
\23\ Id. Sec. Sec. 570.58(a)(1), (2).
\24\ See U.S. Dep't of Labor, Div. of Labor Standards,
Occupational Hazards to Young Workers, Report No. 7, The Operation
of Hoisting Apparatus, at 6 (1946) (Report No. 7).
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Until 2010, HO 7 did not prohibit 16- and 17-year olds from
operating power-driven patient lifts. The study that supported HO 7 did
not address patient lifts, but it did conclude that electric or air-
operated hoists with a capacity of
[[Page 48741]]
one ton or less were ``much less dangerous to operate than larger
hoists,'' were used for light work, and were simple to operate.\25\ The
Department accordingly included an exemption in HO 7 for electric or
air-operated hoists with a capacity of one ton or less, and patient
lifts fall within that category. Thus, between 1946 and 2010, HO 7 did
not prohibit the operation of patient lifts.
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\25\ Id. at 13. HO 7 was amended on August 31, 1955 to include
riding on a manlift. 20 FR 6386.
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On May 20, 2010, the Department issued a final rule amending
several HOs, including HO 7.\26\ The amendment to HO 7, among other
things, eliminated the exemption for hoists with a capacity of one ton
or less.\27\ This decision was informed, in part, by a statement in a
2002 report from the National Institute for Occupational Safety and
Health (NIOSH) that ``[a] hoisted load weighing less than one ton has
the potential to cause injury or death as a result of falling, or being
improperly rigged or handled.'' \28\ The 2010 Final Rule also expanded
HO 7 to prohibit repairing, servicing, disassembling, and assisting in
the operation of the machines.\29\
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\26\ 75 FR 28404 (May 20, 2010) (2010 Final Rule).
\27\ 75 FR at 28433-34. In addition, the 2010 Final Rule amended
HO 7 to prohibit youth from riding on any part of a forklift as a
passenger (including the forks); to prohibit work from truck-mounted
bucket or basket hoists; and to include operating or tending aerial
platforms (e.g. scissor lifts) in the definition of manlift. It also
revised the definition of ``high-lift truck'' to incorporate a
longstanding enforcement position that industrial trucks such as
skid loaders, skid-steer loaders, and Bobcat loaders fall within
that definition.
\28\ 75 FR at 28433; NIOSH, National Institute for Occupational
Safety & Health (NIOSH) Recommendations to the U.S. Department of
Labor for Changes to Hazardous Orders (May 3, 2002), at 36, https://www.cdc.gov/niosh/docs/nioshrecsdolhaz/pdfs/dol-recomm.pdf (NIOSH
Report). The NIOSH Report was issued after the Department had
commissioned NIOSH in 1998 to conduct a comprehensive review of
literature and data related to workplace hazards and to assess the
adequacy of existing child labor protections in preventing them.
\29\ 75 FR at 28433-34.
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In July 2010, the Department released Fact Sheet 52, which
explained that the amended HO 7 barred 16- and 17-year-olds from
operating or assisting in the operation of power-driven hoists designed
to lift and move patients. The Department thereafter received a number
of inquiries from a bipartisan group of legislators regarding this
matter. The inquiries raised a number of concerns, including
businesses' need to meet critical staff shortages at health care
facilities, particularly in rural areas, through 16- and 17-year-old
trainees; the continued success of nursing aide education programs; the
future careers of youth in health care; the need for staff to use
power-driven patient lifts; and the safety of workers and health care
facility residents. For example, then-Congressman Michael Michaud (D-
ME) noted that many facilities have adopted ``zero-lift policies'' that
prohibit the lifting of patients without safe assistance. As a result
of the regulatory change, however, young CNAs' only method to assist a
patient may be the unsafe practice of manually lifting the patient.
Similarly, a letter from then-Senator Herb Kohl (D-WI), Senator Amy
Klobuchar (D-MN), then-Senator Mike Johanns (R-NE), and then-Senator
Kent Conrad (D-ND) asserted that the Department's restrictions were
``discouraging long-term care facilities from employing and training
minors at the very point in time that this employment sector needs to
grow rapidly in order to accommodate the needs of our now rapidly-aging
population'' and ``hampering youth employment programs for high school
students, and those health care facilities that wish to employ them.''
They also asserted that power-driven patient lifts are safe for both
residents and workers, including 16- and 17-year-old workers. For
example, Senators Kohl, Klobuchar, Johanns, and Conrad stated that
power-driven patient lifts are ``extremely safe'' because they ``move
quite slowly, and have multiple safety and failsafe features.''
Likewise, a letter from then-Congressman Earl Pomeroy (D-ND) stated
that ``according to the North Dakota Workforce Safety and Insurance
(WSI) Department, not one 16- or 17-year-old worker has been found to
be injured by using an electronic patient lift.''
The Department also heard from interested stakeholders,
particularly health care providers and their representatives. By way of
example, a March 2011 statement by the American Health Care Association
and the National Center for Assisted Living noted that some community
colleges and apprenticeship programs had ceased accepting 16- and 17-
year-olds into their programs as a result of the regulatory change,
imperiling the supply of health care workers in nursing homes.
Similarly, several small nursing facilities in North Dakota that
employed 16- and 17-year-old CNAs expressed concern that the regulatory
change may prevent them from employing these individuals as CNAs--which
would both create staff shortages and discourage youth from pursuing
careers in health care--and may encourage 16- and 17-year-old CNAs to
engage in unsafe manual lifting. Some facilities stated that they
instituted procedures in which an adult would be summoned to operate a
power-driven patient lift when needed. According to these facilities,
such procedures not only caused delays and made patients feel that they
were unduly burdening staff, but also deprived 16- and 17-year-olds of
valuable work experience. Like the legislators, these stakeholders also
asserted that power-driven patient lifts were safe for workers,
including 16- and 17-year-old workers, to operate. A letter from the
Healthcare Education Industry Partnership Council noted that staff
using or assisting with lifts, regardless of age, are trained on how to
safely operate patient lifts, and receive such training both as part of
their nursing assistant curriculum and when hired by health care
providers. Another letter from a health care provider stated that the
facility had never had an employee injured using power-driven patient
lifts, but had countless employees injured from failing to use such
equipment.
In October 2010, the Department asked NIOSH for assistance to
determine when 16- and 17-year-old employees could safely operate or
assist in the operation of power-driven patient lifts.\30\ In March
2011, NIOSH opined that 16- and 17-year-olds could only perform these
tasks safely when assisting an experienced caregiver.\31\ NIOSH did not
express any specific concerns about the actual operation of the
equipment. Rather, it cited the force necessary to place slings under
patients and to push a lift loaded with a patient. NIOSH also stated
that adolescent workers often underestimate dangers associated with
hazardous tasks and concluded that specific training alone is
insufficient to protect young workers in this context. NIOSH also
agreed that manually lifting patients is far more likely to result in
lower back injuries than using a power-driven patient lift, and
recommended that WHD consider regulations prohibiting youth under 18
from manually lifting patients.\32\
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\30\ See Letter by WHD Deputy Administrator Nancy Leppink to
NIOSH Director John Howard, Oct. 21, 2010.
\31\ See NIOSH Assessment of Risks for 16- and 17-Year Old
Workers Using Power-Driven Patient Lift Devices, https://www.dol.gov/whd/CL/NIOSH_PatientLifts.pdf (``NIOSH 2011 Report''),
at 10-11.
\32\ The Department has considered NIOSH's report and discusses
it, at pp. 11, 13-14, and 17-18. As discussed below, the Department
believes that it is important to separately consider the potential
risks and benefits to youth using power-driven patient lifts because
of the distinctions between patient lifts and the other covered
equipment in HO 7.
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The Department issued a Field Assistance Bulletin (FAB) on July 13,
2011, establishing a nonenforcement policy when, under specified
conditions, trained 16- and 17-year-olds assist a trained adult in the
operation of
[[Page 48742]]
power-driven patient lifts/hoists.\33\ In the FAB, the Department
stated that it would not ``assert child labor violations involving 16-
and 17-year-olds who assist a trained adult worker . . . in the
operation of floor-based vertical powered patient/resident lift
devices, ceiling-mounted vertical powered patient/resident lift
devices, and powered sit-to-stand patient/resident lift devices
(lifting devices)'' when the youth worker met specific training
requirements, was not injured in the process, did not make ``hands on''
physical contact with the patient during the lifting or transferring
process, and, among other things, received necessary documentation in
advance.
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\33\ See U.S. Dep't of Labor, Wage & Hour Div., Field Assistance
Bulletin 2011-3, July 13, 2011, https://www.dol.gov/whd/FieldBulletins/fab2011_3.pdf; see also FOH 33h07(e)(5), https://www.dol.gov/whd/FOH/FOH_Ch33.pdf.
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Nonetheless, stakeholders and legislators have continued to voice
concerns about the strict limitations that HO 7 and the nonenforcement
policy place on 16- and 17-year-olds' ability to operate power-driven
patient lifts. In general, these stakeholders and legislators have
argued that the current limits on the use of power-driven patient lifts
are both unnecessary and far too restrictive. They have argued, for
instance, that power-driven patient lifts are safer than manual
lifting; that the demand for workers in health care can often exceed
supply; that the restrictions resulting from the 2010 Final Rule and
the 2011 FAB prevent health care facilities from recruiting sufficient
employees; and that these restrictions deprive 16- and 17-year-olds of
valuable training opportunities.
These commenters have argued that HO 7 and the 2011 FAB
unnecessarily restrict programs that train high school students to
become nursing assistants and allow them to apprentice in medical
settings such as nursing homes and long-term care facilities. They
further argue that the 16- and 17-year-old students in these programs
are trained in the operation of power-driven patient lifts and
therefore can operate the lifts safely. For example, letters in 2017
from Senator Tammy Baldwin (D-WI), Representative Ron Kind (D-WI), and
Senator Ron Johnson (R-WI) cited an organization that enables students
in Wisconsin to take college-level nursing courses, receive CNA
certifications, and work as apprentices with employers. Highlighting
the difficulties such programs have faced, a 2012 survey of vocational
schools by the Massachusetts Department of Public Health's Teens at
Work Project indicated that nearly 60 percent of respondents said that
employers had commented about increased burdens due to restrictions on
teens' use of power-driven patient lifts, and that 23 percent of
respondents reported that students had to change jobs as a result of
the revised HO 7.\34\ Survey respondents further indicated that the
restrictions made it more difficult to place students participating in
cooperative education job programs in health care. Notably, some
students performed more manual lifting. And even when employers were
willing and able to adjust the job duties of youth to comply with the
FAB, such adjustments were often extremely time- and resource-
consuming.\35\
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\34\ Mass. Dep't of Public Health, Occupational Health
Surveillance Program, Federal Child Labor Law Hazardous Occupations
Order No. 7 (HO7) and Power-driven Patient Lift Assist Devices:
Revisions to the Law, at 2.
\35\ Id.
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IV. Review of Proposed Changes
The Department has regularly reviewed and revised the criteria for
permissible youth employment to address amendments to the FLSA,
improvements in workplace safety, the introduction of new processes and
technologies, the emergence of new types of businesses in which young
workers may find employment opportunities, the existence of differing
federal and state standards, divergent views on how best to correlate
school and work experiences, and changing needs of employers and
businesses in the economy.\36\ Consistent with these principles, and
based on the information provided by stakeholders and available data,
the Department is considering whether the operation of power-driven
patient lifts is indeed particularly hazardous to youth employed in the
health care occupations or detrimental to their health or well-being.
This Notice of Proposed Rulemaking proposes to exclude power-driven
patient lifts from the list of devices covered under HO 7 and asks for
comment on that proposal.
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\36\ In addition to the proposals herein, the Department is
consulting with NIOSH to determine what other updates to the HOs, if
any, are appropriate to expand employment, apprenticeship, and
training opportunities while maintaining worker protections.
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As explained above, the Department has received numerous letters,
including from health care providers and a bipartisan group of Members
of Congress, requesting that the Department reconsider its policies
with respect to patient lifts to address industry needs and to promote
learning opportunities and safety for youth workers. These letters
contained useful information in support of their arguments, including
indications that the restrictions stemming from HO 7 interfere with
facilities' ability to care for patients, potentially encourage 16- and
17-year-olds to engage in less safe manual lifting, and hinder the
employment of 16- and 17-year-olds in health care.
Although they fit within the technical definition of devices
covered by HO 7, power-driven patient lifts differ in significant ways
from the other devices addressed by that HO. For example, power-driven
patient lifts are used in settings far different from the industrial
settings in which most of the other devices addressed by that HO are
used (and for which HO 7 was principally promulgated).\37\ Moreover,
data from BLS shows that from 2012 through 2016, only one worker
fatality was attributed to patient hoists or lifting harnesses. By
contrast, during this same period, 221 worker fatalities were
associated with cranes, 10 were associated with overhead hoists, 200
were associated with bucket or basket hoists, 35 were associated with
manlifts, and 464 were associated with forklifts.\38\ BLS data also
shows that, during the same period, the annual median days lost
associated with injuries caused by patient lifts ranged from 5 to 10,
compared to 5 to 41 for manlift injuries; 14 to 21 for forklift
injuries, 4 to 23 for overhead hoist injuries, 8 to 27 for bucket or
basket hoist injuries, and 14 to 34 for crane injuries.\39\ Put simply,
a power-driven patient lift is different, both in form and function,
from a forklift, backhoe, crane, and the numerous other industrial
devices mentioned in HO 7. The Department believes that it is important
to separately consider the potential risks and benefits to youth using
this equipment because patient lifts differ so significantly from the
other covered equipment in HO 7.
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\37\ Highlighting the industrial nature of the devices that HO 7
was intended to prohibit 16- and 17-year-olds from operating, the
appendix to the 1946 report supporting HO 7 includes a table showing
that injuries in one state caused by hoisting apparatus were
concentrated primarily in manufacturing, construction, mining and
quarrying, and trade, with only 5.8 percent of such injuries
occurring in ``service industries.'' Report No. 7, Appendix II,
Table I (1946).
\38\ See Bureau of Labor Statistics, Census of Fatal
Occupational Injuries (2011 forward), https://data.bls.gov/PDQWeb/fw.
\39\ See Bureau of Labor Statistics, Nonfatal cases involving
days away from work: Selected characteristics (2011 forward),
https://data.bls.gov/PDQWeb/cs.
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Use of power-driven patient lifts also has important benefits for
worker safety. In particular, as NIOSH recognized in its 2011 report,
power-driven patient lifts have significantly reduced the risk of
[[Page 48743]]
lower back injuries to workers, which is much more prevalent when
caregivers use their own physical strength to transfer patients
manually.\40\ DOL's Occupational Safety and Health Administration
(OSHA) has also recommended that manual lifting of nursing home
residents ``be minimized in all cases and eliminated when feasible.''
\41\ Thus, while the operation of power-driven patient lifts is not
risk-free, these devices ultimately improve worker safety. Given that
power-driven patient lifts are widely regarded as safer for the worker
than manual lifting, the Department believes that it is incongruous for
16- and 17-year-olds to be prohibited from independently operating
power-driven patient lifts but permitted to manually lift patients
without any restrictions (since manual lifting of patients is not
prohibited by any HO). Such a framework creates incentives that are
inconsistent with worker and patient safety.
---------------------------------------------------------------------------
\40\ NIOSH 2011 Report at 2.
\41\ OSHA, Ergonomics for the Prevention of Musculoskeletal
Disorders, Guidelines for Nursing Homes (OSHA 3182-3R-2009), at 9,
https://www.osha.gov/ergonomics/guidelines/nursinghome/final_nh_guidelines.pdf.
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Additionally, best practices developed by OSHA and other government
agencies can help mitigate the risks associated with power-driven
patient lifts. NIOSH informed WHD that research has demonstrated that
``comprehensive safe patient handling and movement programs that
incorporate power-driven patient lifts have made an enormous difference
in reducing musculoskeletal disorders among health care workers in the
United States.'' \42\ The Department believes that adhering to such
best practices, rather than a blanket prohibition on the independent
operation of power-driven patient lifts, may be the best way to ensure
that 16- and 17-year-old workers can operate these devices safely. For
example, guidance developed in part by the Veterans Health
Administration and Department of Defense provides recommendations for
the circumstances under which one, two, or three or more caregivers are
appropriate to operate a lift.\43\ Generally, this guidance recommends
that two to three caregivers are appropriate when lifting or
transferring a patient who cannot bear weight, cannot offer assistance,
or is uncooperative, but that under certain circumstances, only one
caregiver is needed for a patient who can bear at least partial weight
and is cooperative. OSHA's guidelines for nursing homes concur with
these recommendations.\44\ Additional guidance for employers who are
considering engaging 16- and 17-year-olds in the operation of power-
driven patient lifts is available through NIOSH.\45\
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\42\ Letter by NIOSH Director John Howard to WHD Deputy
Administrator Nancy Leppink, Mar. 11, 2011, https://www.dol.gov/whd/CL/NIOSH_CoverLetter.pdf.
\43\ See Patient Safety Center of Inquiry (Tampa, FL), Veterans
Health Administration and Department of Defense, Patient Care
Ergonomics Resource Guide: Safe Patient Handling and Movement, at
73-78, https://osha.oregon.gov/edu/grants/train/Documents/va-patient-care-ergonomics-resource-guide-part-1-rev-8-2005.pdf.
\44\ OSHA Ergonomics for the Prevention of Musculoskeletal
Disorders, Guidelines for Nursing Homes, at 13, 15-16.
\45\ CDC/NIOSH, Safe Patient Handling and Mobility (SPHM),
https://www.cdc.gov/niosh/topics/safepatient/default.html.
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Finally, requirements under other federal and state statutes and
regulations may help ensure that 16- and 17-year-olds can operate
power-driven patient lifts safely. For example, regulations under the
Federal Nursing Home Reform Act, part of the Omnibus Budget
Reconciliation Act of 1987, require that nurses' aides in nursing
facilities or skilled nursing facilities complete a competency
evaluation and receive at least 75 hours of training, including at
least 16 hours of supervised practical or clinical training, under the
supervision of a registered nurse who has at least two years of nursing
experience.\46\ ``Transfers, positioning, and turning'' are required
parts of the training.\47\ Over half of states require more training
hours than this federal minimum, and 13 states require at least 120
training hours.\48\ Many states require that CNAs learn about
transitioning or moving a patient using power-driven patient lifts as
part of their curriculum.
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\46\ 42 CFR 483.152, 483.154.
\47\ 42 CFR 483.152(b)(3)(viii).
\48\ PHI (Paraprofessional Health Care Institute), Nursing
Assistant Training Requirements by State, https://phinational.org/advocacy/nurse-aide-training-requirements-state-2016/.
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In light of these considerations, the Department proposes to remove
the operation of power-driven patient lifts from HO 7. The Department
welcomes comments on this proposal. The proposed rule defines ``patient
lift'' as a power-driven device, either fixed or mobile, used to lift
and transport a patient or resident (such as of a medical care,
nursing, long-term care, or assisted living facility) in the horizontal
or other required position from one place to another, as from a bed to
a bath, including any straps and a sling used to support the patient.
This definition derives from two definitions of patient lifts in U.S.
Food and Drug Administration regulations on medical devices, 21 CFR
880.5500 and 880.5510. The Department welcomes comments on whether the
Department's proposed definition is appropriate or, if not, how the
proposed definition should be revised. In addition, the Department
proposes minor conforming and technical edits to existing paragraph
570.58(c).
V. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
and its attendant regulations, 5 CFR part 1320, require the Department
to consider the agency's need for its information collections, their
practical utility, the impact of paperwork and other information
collection burdens imposed on the public, and how to minimize those
burdens. The PRA typically requires an agency to provide notice and
seek public comments on any proposed collection of information
contained in a proposed rule.\49\
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\49\ See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.
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This NPRM does not contain a collection of information subject to
OMB approval under the Paperwork Reduction Act. The Department welcomes
comments on this determination.
VI. Analysis Conducted in Accordance With E.O. 12866, Regulatory
Planning and Review, and E.O. 13563, Improved Regulation and Regulatory
Review
A. Introduction
Under E.O. 12866, OMB's Office of Information and Regulatory
Affairs determines whether a regulatory action is significant and,
therefore, subject to the requirements of the E.O. and OMB review.\50\
Section 3(f) of E.O. 12866 defines a ``significant regulatory action''
as an action that is likely to result in a rule that: (1) Has an annual
effect on the economy of $100 million or more, or adversely affects in
a material way a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities (also referred to as economically
significant); (2) creates serious inconsistency or otherwise interferes
with an action taken or planned by another agency; (3) materially
alters the budgetary impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the E.O. OIRA
has determined that this proposed rule is not significant under section
3(f) of E.O. 12866.
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\50\ 58 FR 51735 (Sept. 30, 1993).
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[[Page 48744]]
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; that
it is tailored to impose the least burden on society, consistent with
achieving the regulatory objectives; and that, in choosing among
alternative regulatory approaches, the agency has selected the
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
B. Economic Analysis
1. Overview of Proposed Changes
In this NPRM, the Department proposes to remove the operation of
power-driven patient lifts from the list of HO-governed activities.
This analysis assumes that federal regulations would govern all
entities. The Department does not herein interpret any state laws or
regulations that may have greater restrictions on the type of work that
16- and 17-year-olds are allowed to perform, or the hours they are
allowed to work. As a result, this analysis may overestimate the number
of workers and employers affected by the NPRM. The Department seeks
public comment regarding state and local regulations and laws governing
16- and 17-year-olds, and how they differ from these federal
regulations.
2. Increased Earnings for 16- and 17-Year-Olds Who Become Employed
The proposal to remove the operation of power-driven patient lifts
from the list of HO-governed activities is expected to expand
employment opportunities in the health care sector for 16- and 17-year-
olds. The total universe of 16- and 17-year-olds who could enter these
new jobs is the number who are unemployed (that is, jobless, looking
for a job, and available for work). Unlike for the general adult
population, the Department assumes that 16- and 17-year-olds who are
not looking for work--and are, therefore, not in the labor force--are
focused on school and would not choose to move into the labor force
even if additional employment opportunities became available. According
to annual average data from BLS, which includes individuals who are not
working but who have looked for a job in the past month, there were
347,000 unemployed 16- and 17-year-olds in 2017.\51\
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\51\ BLS Current Population Survey, Annual Averages, Employment
status of the civilian noninstitutional population by age, sex, and
race. https://www.bls.gov/cps/cpsaat03.htm.
---------------------------------------------------------------------------
If 16- and 17-year-olds are no longer prohibited from independently
operating power-driven patient lifts, employers may be more likely to
hire youth for health care occupations that use these lifts. In the
Department's analysis, home health care services (NAICS 6216),
hospitals (NAICS 622), and nursing and residential care facilities
(NAICS 623) are summed to estimate the portion of the health care
industry that relies the most on the use of patient lifts. Going
forward in this economic analysis, discussions involving health care
calculations refer to these industries, which together constituted 6.7
percent of total employment in the United States in 2017.\52\
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\52\ BLS Current Employment Statistics Databases, annual average
employment, 2017, Series IDs CEU0000000001, CEU6562160001,
CEU6562200001, and CEU6562300001. www.bls.gov/ces/data.htm.
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To determine the number of new 16- and 17-year-old workers that the
amendment to HO 7 would add to the economy, it is necessary to estimate
the share of unemployed teens who could gain employment in these health
care industries. The Department used the employment share discussed
above (6.7 percent) and multiplied it by the total number of unemployed
teens (347,000) to calculate a proxy for the share of 16- and 17-year-
olds who would choose to work in health care given the opportunity. The
Department estimates that the change to HO 7 could potentially add up
to 23,249 new workers to these industries. The Department seeks public
comments regarding the estimated number of 16- and 17-year-olds who
would gain employment as a result of the changes proposed in this NPRM.
To quantify the wages that these new workers would earn, the
Department used the average hourly pay rate for 16- and 17-year-olds in
health care. BLS data show that, on average, 16- and 17-year-olds in
the health care and social assistance industry earned $9.60 per hour in
2017.\53\
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\53\ BLS Current Population Survey, results generated through
DataFerrett (https://dataferrett.census.gov/) using PTERNH10 for
hourly earnings, PRTAGE for age, and PRIMIND1 for industry.
---------------------------------------------------------------------------
BLS data show that, on average, 16- and 17-year-olds work 18.2
hours per week.\54\ In addition, data show that 60 percent of 16- and
17-year olds work 26 or fewer weeks out of the year, with almost 40
percent working less than 14 weeks.\55\ Therefore, the Department
assumes that 16- and 17-year-olds work, on average, 20 weeks per year.
If a 16- or 17-year-old works 18.2 hours per week for 20 weeks per year
and earns $9.60 per hour, his or her average annual earnings would be
$3,494. Multiplying this annual wage by the estimated 23,249 potential
new workers in health care yields a total annual wage impact of
$81,241,306 at either a 3 or 7 percent discount rate.
---------------------------------------------------------------------------
\54\ BLS Current Population Survey, Average Hours at Work in
Nonagricultural Industries, 16 to 17 years. https://www.bls.gov/cps/cpsaat22.htm.
\55\ BLS Current Population Survey, unpublished table: Work
Experience of the Population by Extent of Employment in 2016, Sex,
Race, Hispanic or Latino ethnicity, and Age, March 2017.
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3. Benefits
In association with the earnings that 16- and 17-year-olds would
receive through employment in the health care industry, there are many
unquantifiable benefits. As discussed earlier, research has shown that
working as a teen correlates with better attachment to the workforce
over a person's entire career. By working or participating in an
apprenticeship program, 16- and 17-year-olds receive training and
develop skills for in-demand jobs. For example, employment in the
health care and social assistance sector is projected to add nearly 4
million jobs by 2026, about one-third of all new jobs, creating high
demand for skilled workers in this field.\56\
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\56\ BLS Employment Projections, https://www.bls.gov/news.release/ecopro.nr0.htm.
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The availability of 16- and 17-year-olds to perform these
activities would also benefit society in other ways. For example, if
the Department adopts the proposal to remove the operation of power-
driven patient lifts from HO 7, these youth workers may be permitted to
independently operate a patient lift, so adult employees could work
more efficiently, resulting in higher workplace productivity.
Additionally, increased earnings for youth, both currently and over
their future career, would enable workers to contribute more in the
form of income taxes and decrease their reliance on social welfare
programs given their steadier employment and income.
4. Regulatory Familiarization Costs
Regulatory familiarization costs represent direct costs to
businesses associated with reviewing the new regulation. To calculate
the cost associated with reviewing the rule, the Department first
estimated the number of establishments that would review the rule. The
Department used
[[Page 48745]]
establishment data from the Quarterly Census of Employment and Wages
for the three relevant health care industries. The 2016 annual average
number of establishments in Home Health Care Services (NAICS 6216) was
34,090, the number of establishments in Hospitals (NAICS 622) was
12,754, and the number of establishments in Nursing and Residential
Care Facilities (NAICS 623) was 80,252, totaling 127,096 establishments
in the three relevant health care industries.
Next, the Department estimated the time it would take for an
establishment to review the rule. The Department estimates that it
would take approximately 15 minutes for a health care establishment to
review the provisions related to removing the operation of power-driven
patient lifts from the list of HO-governed activities.
Then, the Department estimated the hourly compensation of the
employees who would likely review the rule. The Department assumes that
a Human Resources Manager (SOC 11-3121) would review the rule. The mean
hourly wage of Human Resources Managers is $59.38.\57\ The Department
adjusted this wage rate to reflect fringe benefits such as health
insurance and retirement benefits, as well as overhead costs such as
rent, utilities, and office equipment. The Department used a fringe
benefits rate of 46 percent \58\ and an overhead rate of 17
percent,\59\ resulting in a fully loaded hourly compensation rate for
Human Resources Managers of $96.79 (= $59.38 + ($59.38 x 46%) + ($59.38
x 17%)).
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\57\ BLS, Occupational Employment Statistics, Occupational
Employment and Wages, May 2017, 11-3121 Human Resources Managers,
https://www.bls.gov/oes/current/oes113121.htm.
\58\ BLS, Employer Costs for Employee Compensation, https://www.bls.gov/ncs/data.htm. Wages and salaries averaged $24.26 per
hour worked in 2017, while benefit costs averaged $11.26, which is a
benefits rate of 46%.
\59\ Cody Rice, U.S. Environmental Protection Agency (June 10,
2002), ``Wage Rates for Economic Analyses of the Toxics Release
Inventory Program,'' at 4. https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
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Therefore, regulatory familiarization costs in Year 1 for
establishments in the pertinent health care sectors are estimated to be
$3,075,386 (= 127,096 establishments x 15 minutes x $96.79), which
amounts to a 10-year annualized cost of $350,028 at a discount rate of
3 percent (which is $2.75 per establishment) or $409,220 at a discount
rate of 7 percent (which is $3.22 per establishment). The Department
seeks public comments regarding the estimated number of establishments
that would review the rule, the estimated time to review the rule, and
whether a Human Resources Manager would be the most likely staff member
to review the rule.
[GRAPHIC] [TIFF OMITTED] TP27SE18.000
5. Additional Costs
If the Department adopts this proposed rule without change, health
care employers would likely increase the number of employment,
apprenticeship, and training opportunities for 16- and 17-year-olds.
One potential cost to employers that seek to hire 16- and 17-year-
olds in health care occupations through apprenticeship or other
training program models is the cost of the training programs
themselves. For example, apprenticeship programs vary significantly in
length--from one to six years--and in cost. A 2016 study by the
Department of Commerce found that the most expensive program in their
sample cost $250,000 per apprentice, while the least expensive cost
less than $25,000. The study found that apprentices' compensation costs
over the duration of the program were the major cost for all companies.
Other important costs included program start-up, tuition and
educational materials, mentors' time, and overhead.
The proposed rule, however, would not impose these costs on
employers; rather, the above-described costs would only result from
employers' voluntary employment decisions as a result of the proposed
rule, such as the decision to employ additional apprentices.
In addition to the potential costs and benefits to employers, the
potential costs to youth should be considered. Although power-driven
patient lifts are widely regarded as safer for workers than manual
lifting, worker injuries have nonetheless been attributed to the use of
patient lifts. But while the operation of power-driven patient lifts is
not risk-free, these devices do improve worker safety. As discussed,
power-driven patient lifts have significantly reduced the risk to
workers of musculoskeletal disorders, which can be caused by manually
lifting patients. The Department seeks comments and additional data on
the potential risks or safety improvements associated with additional
apprenticeship and employment opportunities for 16- and 17-year-olds in
health care.
6. Summary of Costs
Table 2 summarizes the total quantifiable costs.
[[Page 48746]]
[GRAPHIC] [TIFF OMITTED] TP27SE18.001
C. Analysis of Regulatory Alternatives
In developing this NPRM, the Department considered one regulatory
alternative that would be less restrictive than what is currently
proposed and one that would be more restrictive. For the option that
would be less restrictive, the Department considered creating an
exemption in HO 7 for all hoists with a capacity of two tons or less.
But without additional information concerning the safety and potential
risks associated with the various hoisting apparatuses that such an
exemption would affect, the Department has decided to limit the scope
of this proposed rule to address the operation of power-driven patient
lifts only.
For a more restrictive alternative, the Department considered
codifying into the regulations the restrictions and conditions in its
2011 nonenforcement policy concerning power-driven patient lifts. To
encourage more employers to hire 16- and 17-year-olds in health care-
related jobs and to allow youth to safely obtain the training and
skills they need for these in-demand careers, however, the Department
decided to propose eliminating power-driven patient hoists from the
list of prohibited devices in HO 7. The Department believes that the
current proposal would increase youth employment and participation in
these fields, while also keeping these workers safe.
D. Initial Regulatory Flexibility Analysis
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. (as amended), the Department examined the regulatory requirements
of the proposed rule to determine whether they would have a significant
economic impact on a substantial number of small entities. As indicated
in Section VI.B, Economic Analysis, the annualized burden is estimated
to be $3.22 per establishment. At the firm level, each firm in Home
Health Care Services (NAICS 6216), Hospitals (NAICS 622), and Nursing
and Residential Care Facilities (NAICS 623) has on average 1.94
establishments,\60\ so the number of firms is estimated to be 65,624.
Table 3 shows the estimated number of firms in the three health care
subsectors, as well as the annualized cost per firm.
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\60\ Census Bureau, Statistics of U.S. Businesses, 2015.
[GRAPHIC] [TIFF OMITTED] TP27SE18.002
Table 4 provides the annualized cost per firm as a percentage of
revenue by firm size in the health care and social assistance industry.
As the table shows, the annualized burden as a percent of the smallest
employer's revenue would be far less than 1 percent. Accordingly, the
Department certifies that the proposed rule would not have a
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significant economic impact on a substantial number of small entities.
BILLING CODE 9110-04-P
[[Page 48747]]
[GRAPHIC] [TIFF OMITTED] TP27SE18.003
BILLING CODE 9110-04-C
E. Unfunded Mandates Reform Act Analysis
The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532,
requires that agencies prepare a written statement, which includes an
assessment of anticipated costs and benefits, before proposing any
Federal mandate that may result in excess of $100 million (adjusted
annually for inflation) in expenditures in any one year by state,
local, and tribal governments in the aggregate, or by the private
sector. This rulemaking is not expected to result in such expenditures
by state, local, or tribal governments. While this rulemaking would
affect employers in the private sector, it is not expected to result in
expenditures greater than $100 million in any one year. Please see
Section B for an assessment of anticipated costs and benefits to the
private sector.
F. E.O. 13132, Federalism
The Department has (1) reviewed this proposed rule in accordance
with E.O. 13132 regarding federalism and (2) determined that it does
not have federalism implications. The proposed rule would not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
G. E.O. 13175, Indian Tribal Governments
This proposed rule would not have substantial direct effects on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
H. Effects on Families
The undersigned hereby certifies that the proposed rule would not
adversely affect the well-being of families, as discussed under section
654 of the Treasury and General Government Appropriations Act, 1999.
I. E.O. 13045, Protection of Children
E.O. 13045, dated April 21, 1997 (62 FR 19885), applies to any rule
that (1) is determined to be ``economically significant'' as defined in
E.O. 12866, and (2) concerns an environmental health or safety risk
that the promulgating agency has reason to believe may have a
disproportionate effect on children. This proposal is not subject to
E.O. 13045 because it is not economically significant as defined in
E.O. 12866.
List of Subjects in 29 CFR Part 570
Administrative practice and procedure, Agriculture, Child labor,
Intergovernmental relations, Occupational safety and health, Reporting
and recordkeeping requirements.
[[Page 48748]]
VII. Proposed Regulatory Changes
For the reasons set forth in the preamble, the Department of Labor
proposes to amend part 570 of title 29 of the Code of Federal
Regulations as follows:
PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF
INTERPRETATION
Subpart E--Occupations Particularly Hazardous for the Employment of
Minors Between 16 and 18 Years of Age or Detrimental to Their
Health or Well-Being
0
1. The authority citation for Subpart E continues to read as follows:
Authority: 29 U.S.C. 203(l), 212, 213(c).
Sec. 570.58 [Amended]
0
2. In Sec. 570.58, add in alphabetical order a definition for
``patient lift'' paragraph (b) and revise paragraph (c) to read as
follows:
Sec. 570.58 Occupations involved in the operation of power-driven
hoisting apparatus (Order 7).
* * * * *
(b) * * *
Patient lift is a power-driven device, either fixed or mobile, used
to lift and transport a patient or resident (such as of a medical care,
nursing, long-term care, or assisted living facility) in the horizontal
or other required position from one place to another, as from a bed to
a bath, including any straps and a sling used to support the patient or
resident.
(c) Exceptions. (1) Automatic elevators and automatic signal
elevators. (i) This section shall not prohibit the operation of an
automatic elevator and an automatic signal operation elevator provided
that the exposed portion of the car interior (exclusive of vents and
other necessary small openings), the car door, and the hoistway doors
are constructed of solid surfaces without any opening through which a
part of the body may extend; all hoistway openings at floor level have
doors which are interlocked with the car door so as to prevent the car
from starting until all such doors are closed and locked; the elevator
(other than hydraulic elevators) is equipped with a device which will
stop and hold the car in case of overspeed or if the cable slackens or
breaks; and the elevator is equipped with upper and lower travel limit
devices which will normally bring the car to rest at either terminal
and a final limit switch which will prevent the movement in either
direction and will open in case of excessive over travel by the car.
(ii) For the purpose of this exception, the term ``automatic
elevator'' shall mean a passenger elevator, a freight elevator, or a
combination passenger-freight elevator, the operation of which is
controlled by pushbuttons in such a manner that the starting, going to
the landing selected, leveling and holding, and the opening and closing
of the car and hoistway doors are entirely automatic.
(iii) For the purpose of this exception, the term ``automatic
signal operation elevator'' shall mean an elevator which is started in
response to the operation of a switch (such as a lever or pushbutton)
in the car which when operated by the operator actuates a starting
device that automatically closes the car and hoistway doors--from this
point on, the movement of the car to the landing selected, leveling and
holding when it gets there, and the opening of the car and hoistway
doors are entirely automatic.
(2) Patient lifts. This section shall not prohibit the work of
operating or assisting in the operation of patient lifts, as defined in
this section.
Signed at Washington, DC, this 21st day of September 2018.
Bryan L. Jarrett,
Acting Administrator, Wage and Hour Division.
[FR Doc. 2018-20996 Filed 9-26-18; 8:45 am]
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