Petition to Reduce Medical Resident Work Hours

September 2, 2010

• Full Report (pdf)
• Introduction
• Part 1: Resident Physicians Work Excessive Hours
• Part 2: Evidence of Harm to Resident Physicians
• Part 3: Existing Hours Limitations for Resident Physicians and Non-Resident Physicians
• Part 4: The Same Rules to Protect Resident Physicians and Subspecialty Resident Physicians Will Also Protect Patients
• Part 5: Arguments Against Reducing Work Hours
• Part 6: OSHA Has Jurisdiction Over Limiting Resident Physician Work Hours
• Part 7: Requests

PART 6: OSHA HAS JURISDICTION OVER Limiting Resident physician Work Hours

In November of 1999 the National Labor Relations Board (NLRB) overturned the 1976 Cedars-Sinai, St. Clare’s Hospital precedent that ruled that resident physicians are primarily students rather than employees, stating that this previous determination was “flawed in many respects,” and that “ample evidence exists here to support our finding that interns, residents, and subspecialty resident physicians fall within the broad definition of ‘employee.’”[1] The Board argued that resident physicians’ “status as students is not mutually exclusive of a finding that they are employees.”

The NLRB’s rationale had four elements. First, resident physicians and subspecialty resident physicians (called “housestaff”) were determined to work for an employer (the hospital) within the meaning of the Act. Second, housestaff are compensated for their services by the hospital, and the hospital withholds federal and state income taxes, as well as social security, from their salaries. Further, housestaff receive fringe benefits reflective of employee status, such as worker’s compensation, paid vacations, and sick leave; parental and bereavement leave; and insurance coverage such as health, dental, life, and malpractice. Third, housestaff provide patient care for the hospital, the service that the hospital sells. Lastly, housestaff were also found to be unlike students in that they do not pay tuition or student fees.

The NLRB thus fundamentally changed the thinking applied to resident physicians, asserting that housestaff are no longer considered primarily students. “That they [housestaff] also obtain educational benefits from their employment does not detract from this fact. Members of all professions continue learning throughout their careers.” The Board concluded that “house staff are employees … and … are therefore entitled to all the statutory rights and obligations that flow from our conclusion.” The signers of this petition believe that these rights entitle housestaff not only the freedom to organize for collective bargaining, but also to expect that OSHA will protect them as employees from unsafe labor practices, the way they would workers in other industries. The NLRB decision clearly brings regulation of resident physician work hours under OSHA’s jurisdiction.

Moreover, whereas hours-of-service regulations put forth by the DOT, for example, have been made possible by the existence of industry-specific statutes, there are no such statutes for resident physician working conditions, and OSHA is therefore the only government organization within whose purview regulation of resident physician work hours falls. Furthermore, OSHA has previously established standards for the protection of health-care workers when it promulgated the Bloodborne Pathogens Standard[2] to protect health-care workers from needlestick injuries.

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