Ban on Teens' Use of Lifts in Nursing Homes Needs Modification

Regulation | August 28, 2017 | by

Overly broad regulation issued by the Department of Labor prevents nursing home workers under age 18, even with appropriate training, from operating power-driven lifts.

A final rule issued by the Department of Labor (DOL) in 2010 prohibits 16- and 17-year-olds from operating power-driven lifts.  Although targeted to cherry pickers, fork lifts and man lifts, the definition in the regulation is broad enough to cover patient lifts commonly used in nursing facilities that are Medicare and/or Medicaid-certified.  The regulation has had a serious impact on nursing facilities, particularly in rural states where there is a profound staffing shortage. 

In response to the concerns LeadingAge expressed about the final rule, in 2011 the DOL permitted youths employed by nursing facilities to “assist” in the operation of the patient lifts only if six conditions are met:

  1. The teen has successfully completed the 75 clock hours of nurse aide training required by the Federal Nursing Home Reform Act (or a higher state standard where applicable) AND has successfully completed the nurse aide competency evaluation detailed in 42 C.F.R. § 483.154 (or a higher state standard where applicable).
  1. The teen is not operating by himself or herself the lifting device AND the teen is assisting in the use of the device as a junior member of at least a 2-person team that is headed by an employee who is at least 18 years of age.  All members of the team must be trained in the safe operation of the lifting device(s) being used.
  1. The teen may:
    1. set up, move, position and secure unoccupied lifting devices;
    2. assist trained adult employees in attaching slings to, and un-attaching slings from lifting devices prior to and after the lift/transfer of the resident is completed;
    3. assist the trained adult employees in operating the controls that activate the power to lift/transfer the resident; and
    4. act as a spotter/observer and may position items such as a chair, wheelchair, bed or commode under the resident who is being lifted/transferred.
  1. The teen may not Independently engage in “hands on” physical contact with the resident during the lifting/transferring process (such as placing or removing the sling, including pushing or pulling the sling under/around the resident; adjusting the sling under/around the resident; and manipulating the resident when placing, adjusting or removing a sling)—the teen, however, may assist in these “hands on” activities when assisting a trained adult employee who is manipulating, guiding, rotating, or otherwise maneuvering the resident during the lift/transfer.  The teen may similarly assist a trained adult employee who is pushing, pulling or rotating lifting devices when the device is engaged in the process of lifting/transferring a resident.
  1. The teen is not injured while operating or assisting in the operation of a lifting device.  In the event of an injury, the employer will be subject to the assessment of child labor civil monetary penalties as permitted by Section 16(e)(1) of the Fair Labor Standards Act.  The WHD has stated that only serious injuries, defined in Field Assistance Bulletin No. 2010-1 (Jan. 20, 2010) as injuries that require treatment more extensive than first aid and results in the youth missing school or work, or having their normal activities curtailed, for more than 5 days, will be subject to assessment of civil monetary penalties.
  1. The employer has provided to the teen employee a copy of the document that is attached to the Bulletin as Attachment A.   WHD has stated that the document must be provided to the teen employee prior to the first lift in which such employee participates.

The Bulletin has provided no relief to our members, particularly those in rural states where the labor pool is limited.  The teens that, absent the prohibition of the final rule, would operate the resident lifts in our member facilities have all received extensive training in the use of lifts—the same training that is given to adults—and are certified nursing assistants (CNAs).  Our members are particularly burdened by the requirement that the lifts be operated by an adult with the teen allowed only to provide minimal assistance.  In many cases, the “adult” operating the lift is only days or months older than the “teen” providing the assistance, yet they both have received the same CNA training.

The final rule, even with the “relief” provided by DOL, does not alleviate staffing problems for our members and strains resources within the facility.  These young staff are actually certified nursing assistants, trained and certified by the state to care for residents, and qualified to operate lifts as well as transfer residents manually. 

The prohibition against using lifts contradicts OSHA recommendations on ergonomics.  Since at least 2003, OSHA has, ironically, recommended that nursing homes eliminate manual lifting of residents because mechanical lifts are safer for both the resident and the employee than manual lifting.  

Related Statute/Regulation:

29 CFR Parts 570 and 579; Field Assistance Bulletin No. 2011-3

Proposed Solution:

Further amend the child labor regulation to specifically exclude patient lifts from the prohibition instituted in the final rule.  While this is a DOL regulation, the impact falls on Medicare certified SNFs and therefore we also urge the Secretary of HHS to work with the Secretary of Labor to resolve this issue.