The Labor Department has yet to publish a key survey cited in its proposal to ease restrictions for teenage workers in health-care settings, despite letters and repeated requests from congressional representatives and worker advocates in recent weeks to do so.
The rule would let 16- and 17-year-olds who work in nursing homes or hospitals operate machines that lift patients from beds, without supervision. This would undo a 2011 policy that required supervision by a staffer who is 18 or older.
Deborah Berkowitz with the National Employment Law Project told Bloomberg Law the agency could be failing to provide the survey because it lacks thorough data, relies on fewer than 25 respondents, and depends heavily on anecdotal evidence. Berkowitz requested the survey from the Massachusetts Department of Health through a records request and shared it with Bloomberg Law.
It’s important the agency release this information to the public as the comment period for the rule ends Dec. 11, Berkowitz said.
The DOL is using a 2012 survey conducted by the Massachusetts Department of Public Health’s Teens at Work Project as evidence to show the Obama-era policy created unnecessary employment burdens for young workers. The DOL’s explanation for pursuing the rule was to increase job opportunities for teen workers.
This rule was already facing controversy as it hasn’t undergone new scientific research about the potential risks for young workers who use patient lifts alone. The proposal references a 2011 report on patient lifts and teen workers by the National Institute for Occupational Safety and Health and ignores prior research about the potential injury dangers.
A Democratic staffer said the survey isn’t detailed and would cast serious doubts for lawmakers about why the department is relying on it for important rulemaking. It’s unclear whether the DOL actually possesses the full report, the staffer said.
The DOL didn’t immediately respond to Bloomberg Law’s request for comment.
What the Survey Indicates
After repeated requests from lawmakers and several labor organizations, the DOL provided the fact sheet for the survey, Berkowitz, NELP’s worker health and safety program director, said. However, it still doesn’t include needed analysis and data from the full survey, she said.
The survey presents a series of questions to vocational high schools in Massachusetts.
One question asks, “Have co-op employers commented about an increased burden placed on their staff due to the restrictions on students using power-driven patient lifts?”
In referencing this question, the DOL says the survey “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.” The response to this question netted 22 responses, 13 of which said yes, making up 59 percent of the response.
While the DOL did extend the comment period until Dec. 11, the survey wasn’t released. In response to that letter, the DOL said only that it referred it to the Wage and Hour Division for review.
Lawmakers will be issuing comments on this rule, noting the agency may not be adhering to its own quality guidelines when it comes to using data in the regulatory process, the Democratic staffer said.
The department is already being looked at by the DOL’s Office of the Inspector General following a Bloomberg Law report that it proposed a “tip pool” regulation without telling the public about an internal analysis showing the rule could allow companies to skim more than $600 million in gratuities from their workers each year.
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(Updated with additional reporting.)