In 2011, the National Institute for Occupational Safety and Health conducted a study that determined 16 and 17-year-old nursing home employees cannot safely operate power-driven hoists to lift and transfer patients without supervision. Use of such devices put teens at increased risk for serious injuries. Recently, the Trump administration attempted to roll back regulations preventing teens’ use of such lifts. In today’s episode, nursing home abuse lawyers Rob Schenk and Will Smith talk about the implications of teen use of power-driven lifts in nursing homes.
Schenk: All right, welcome back to the podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are your hosts for this episode.
Smith: And today we’re going to talk about just a couple of – I hate to use the term “grab bag,” it sounds kind of scattered without direction – we’re going to talk about some workplace issues that are going on in nursing homes right now and kind of give people an insight into what it’s like working in a nursing home.
We’re going to start this off with an issue that has been a hot topic for about eight months now, and it has to do with the current administration and child labor issues in a nursing home. Now understand that when we talk about children, we’re talking about individuals who are technically children. We’re not talking about 8-year-olds, we’re not talking about 9-year-olds. We’re talking about what the law, as far as employment, is concerned.
Smith: All right? And I bring that up because whenever somebody says “children” to me in the workplace, I always think of Oliver Twist.
Schenk: Yeah, like the old school kids going into the mine grabbing coal.
Smith: Yeah, and here, you’ve got high schoolers, essentially, who are working in nursing homes.
Schenk: That’s good. My first job, I was 12 or 13?
Smith: Yeah, I had both the boys, my younger brothers, my father and I had both of them work at least a couple of shifts in a nursing home when they were younger. They didn’t do anything – they mainly just saw what it was like to work inside one. They saw what I had to do. They saw what my dad had to do. My dad was a nurse at the time and I was a certified nurse’s assistant at the time, so they helped us out. One of them rebelled completely against the experience and ended up teaching English in Korea, and the other one actually became a nurse, currently does – well he doesn’t actually work in a nursing home, he works in a cardiac unit, but he’s worked in nursing homes since then.
Schenk: Yeah, since he got the bug.
Smith: But the issue here is that it is not uncommon to see CNAs, and we’re only talking about CNAs or whatever equivalent job description there is, we’re not talking about nurses, because that takes enough schooling. You’re not going to have a Doogie Howser nurse. It’s just not something common. So if you’ve got a nurse, then they’re probably of age.
Schenk: And if you’re not of a certain age, then you might not know that Doogie Howser was a very popular television program in the early ‘80s that had to do with a child prodigy who was a doctor by the age of 14 or 15 and all the problems that that imposed on his life.
Smith: Neil Patrick Harris.
Schenk: Neil Patrick Harris.
Smith: So the specific issue that we’re looking at here has to with the Trump administration, and you’ll have to excuse me, I have a bit of a cold this spring, the Trump administration, their Wage and Hour division of the Department of Labor, back in 2018, proposed a rule that would allow 16 and 17-year-old nursing home workers to operate power-driven patient lifting devices without any adult supervision or assistance despite evidence that it is dangerous.
So what are we talking about here? We’re talking about the Hoyer lift and we’re talking about two age categories, 16 and 17, that are just below the age of majority, right? And here are some interesting stuff that’s going on behind the scenes that I learned about this, that it’s actually the Wage and Hour division of the Department of Labor and not OSHA. It’s not OSHA that is the agency tasked with determining what kind of work children can perform safely. Did you know that?
Schenk: I did not know that.
Smith: So you would have thought that it was OSHA, because OSHA, if you’ve ever worked on a jobsite, if you’ve ever worked construction, if you’ve ever done any physical, if you’ve been, I don’t know, did you ever work as a roadie?
Schenk: Actually my anecdote about OSHA was going to be, and this is actually good because it circles back, my first job when I was 12 or 13 was that I worked at a veterinary clinic, like picking up the poop and bathing dogs. But OSHA had come in and on the sinks, because the veterinarians perform surgeries and there were chemicals and medicines and things like that, all the sinks – and I thought this was so interesting – all the sinks had special spouts put on them to shoot up two sprays of water to spray in your eyes if you ever got whatever it was that was dangerous into your eyes, and the big sign said, “OSHA regulates” – I don’t remember what it says, but that was my first OSHA experience. I’m sorry, go ahead.
Smith: No, and that’s what – OSHA is typically in charge of that, but it’s the Fair Labor and Standards Act and the Fair Labor and Standards Act is the law that protects employees for not being paid for overtime among other issues, and it also touches on whether or not children can perform certain jobs safely.
Schenk: I was going to say, that literally is when we went from Oliver Twist to closer to what we have today, that legislation.
Smith: Oh, absolutely. Yeah, yeah. It used to – at one point, it was, hey kids are small so they can fit in a mine shaft. Who cares? Now you’ve got 16 and 17-year-olds working in a nursing home and there’s a debate on whether or not they can operate the Hoyer lift.
So anyways, the Trump administration argued that they should be allowed to do so because not letting them do that deprives youth – this is from those that are suggesting they should be allowed to it – it deprives youth of valuable skills development opportunities, exacerbates staffing shortages at healthcare facilities and delays the care patients receive and causes youth to manually lift patients, even though using patient lifts is widely recognized as safer.
Well first of all, the problem that I have with this argument is, number one, causes youth to manually lift? If somebody is a mechanical lift and the CNA is not allowed to lift them because of their age, then they’re not allowed to lift them. In addition, you note here that in the middle of their complaint is it exacerbates staffing shortages in healthcare facilities. I mean the problem that I have with that language is it would be tantamount to saying that forcing regulation on child labor in China is exacerbating the storage they have in their factories. So what? Then you need to pay people more. You need to hire more adults.
So it’s a terrible argument on their part, and at the end of the day, it’s a very big issue. When this first came up, the Wage and Hour department actually didn’t have the expertise when it came to Hoyer lifts. I don’t think a lot of people knew what they were. So they turned to the National Institute for Occupational Safety and Health for some help, and this organization said this, that, “Many 16 and 17-year-old employees cannot safely operate power-driven hoist to lift and transfer patients by themselves. Independent use of a power-driven hoist by a 16 or 17-year-old would put them at increased risk for serious muscular-skeletal injuries. Moreover, the scientific literature indicates that most 16, 17-year-old workers do not have the ability to properly access the risk associated with using power-driven lifts.”
So this administration is finding itself at odds with pre-existing organizations whose sole task is to research this, and they have determined that, hey, they have no reason to swing one way or the other. They’ve determined that this is dangerous for 16 and 17-year-olds. And like I was commenting on what the other side’s arguments are, basically it’s that it’s a lot of cheaper labor for the healthcare industry. That’s what it boils down to, is the healthcare industry doesn’t want to give up this cheaper labor and this larger labor pool of 16 to 17-year-old vocational workers, and that’s not taking into account how dangerous it is not only for the 16 and the 17-year-old, but how dangerous it is for the resident as well.
Hoyer lifts – I’ve probably used them hundreds and hundreds and hundreds of times over 10 years, but there is a method to it. There is a way you cannot do them properly and somebody could slip out and fall. There’s also still a risk that you can hurt yourself. I’ve got worker’s comp friends who are attorneys, and they tell me that some of their largest client pools tend to be in the healthcare industries because these people hurt themselves so many times, and I can attest to that as well. It is a physically demanding job, and even though it is less physically demanding when you’re using a power-driven hoist, it still has problems with it. And at the end of the day, I think it’s more dangerous for the resident – it’s too dangerous for the resident to just allow somebody who’s 16 or 17.
Now listen, the argument is also, “Well if they’ve got the proper training,” – do they have the proper training? And that’s fine. There is a suggestion that with the proper training, if they have a certain number of hours of training or if they have an individual who’s older or has more training supervise them, they can do it. But where this is going to land, I’m not really sure. But also what it points to is also another example of this administration siding with the healthcare industry instead of not just consumers but even the healthcare workers.
Schenk: Yeah, what I think is interesting is they’re in an industry that is famous for and consistently striving to cut corners and to save money. It’s just interesting that this is one of the methods in which they are trying to accomplish that objective. How much money could they possibly make squeezing out or lessening the hourly rate of an employee that is 16 or 17 to save money for this issue? You know what I’m saying?
Schenk: How much money could possibly be saved by this? I know that labor is usually the most, is the highest part of the budget, but I guess that’s probably why then it would make sense. It’s just interesting that this is something somebody thought about and went, “You know what? This is a way we can make even more money.”
Smith: Yeah. And what I’d really love to see is I’d love to see some real numbers here, because I’m open minded. I’m sympathetic to business owners. I’m sympathetic to dealing with the market. I’m certainly for free trade and free market capabilities and actions, but unless you show me that your profit margins are razor thin, I believe that somebody is stockpiling money. And plus, we’ve had cases against nursing homes where the owners were paying themselves – a CNA might make 20, high-20s, maybe low-30s a year. I mean when I did it, I made $7 an hour, minimum wage. And we’ve had cases where owners were paying themselves what a CNA makes in a year in a month. In a month. So you’re making 20,000 a month and you’re trying to cut corners by getting cheap 16-year-olds to come work for you to use a Hoyer lift, and you’re complaining that it’s exacerbating things because it’s leading to staffing shortages? Just hire more people. Pay them more.
But it also brings up an interesting riff that people need to remember is that there are three positions here. There are the consumers, there’s the healthcare industry and then caught in the middle are the employees, and I think people tend to forget that. Every single case that we’ve had, an employee is a bad actor. From a legal standpoint, that just means that they contributed to negligence, that they’re part of the problem. But we don’t really sue the employees. We’re suing the employer, because at the end of the day, if they were paid enough and they had enough staff, this probably wouldn’t happen.
So just something to keep in mind when you go visit your mom, you go visit your loved one, the CNAs, these young people working there, the older CNAs, the nurses, they’re not the enemy. In some ways, they’re in it with you because they’re fighting this system as well, this system that says, “Here’s $7 an hour to literally deal with every aspect of human bodily function that there is.” So you take people to the bathroom, you shower them, you shave them, you clean them over and over again, backbreaking work for eight hours a day for the same amount that you can make at Taco Bell. You might even get better benefits.
Schenk: I love Taco Bell.
Smith: I don’t know why people always bring up Taco Bell when they’re talking about the comparisons of minimum wage jobs, but they do. It’s either Taco Bell or McDonalds. I guess it’s just…
Schenk: Well Taco Bell, because I was raging against the machine in the ‘90s, Taco Bell was always in trouble for exploiting migrant workers and farmers and such. That’s probably why. We’ve come a long way since then.
Speaking of me coming a long way, do you know what this Saturday is?
Smith: Ah, yes.
Schenk: This Saturday, if everything goes according to plan, because we record these often very far in advance, but this Saturday, I will be married in church, not the official – this is not the civil marriage, this is the religious marriage – in Brazil.
Smith: Ah, okay.
Schenk: Actually as this goes to air, which will be March 25th, we will be in Brazil.
Schenk: You and I.
Schenk: Not marrying each other. I’ll be marrying Daniela.
Smith: Yeah, I don’t think they allow that in Brazil right now.
Schenk: I don’t think they do actually, because now they have that crazy president. I’m just kidding – I don’t know if you’re listening, if anybody is… Anyways, but he is pretty loco. Actually not – I think it is loco in Portuguese as well.
Schenk: He’s pretty crazy. Anyways, so that’s pretty cool. Anyways, thought I’d throw that in there. But that’s going to conclude this particular episode of the Nursing Home Abuse Podcast. You can get new episodes of the podcast every Monday morning on Stitcher, iTunes, Pod Puppies, Google Play, or you can watch it – NursingHomeAbusePodcast.com or on our YouTube channel. And with that, we will see you next time.
Smith: See you next time.