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by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the February 2001 issue of the Journal

Question: Is it legal to employ a minor to perform sterilization duties in a dental office?

Answer: The Youth Employment Standards Act of 1978 governs the employment of minors in Michigan. A minor means a person under 18 years of age. Section 3 of the act provides, in relevant part, as follows: "(1) A minor shall not be employed in, about, or in connection with an occupation that is hazardous or injurious to the minor's health or personal well-being or that is contrary to standards established under this act, unless a deviation is granted under section 20." (MCLA 409.103)

It is the position of the Michigan Department of Labor that sterilization duties performed in a dental office would be classified as a hazardous activity. This would likely be expanded to most duties performed by a minor in the operatory. The concern expressed by the Department of Labor is that such duties could expose the minor to communicable or contagious diseases bloodborne pathogens, AIDS, HIV, or hepatitis. Because of these possible exposures, the Department of Labor has stated its position that sterilization duties are classified as a hazardous activity under the statute.

The act authorizes the Department of Labor to promulgate rules prescribing standards as to the working conditions, safety, health and personal well-being of minors in various types of employment. The act also authorizes the Department of Labor to issue deviations from the statutory section quoted above. Deviations may be issued when it is determined to be in the best interests of the minor. The procedures for applying and issuing deviations are prescribed by the Department of Labor. A representative of the Department of Labor advises that no applications have been submitted for deviations with respect to employing minors in dental offices to perform sterilization duties. Whether a deviation would be granted would depend on the facts and circumstances of the particular case. There is no precedent to assist in this process.

There is a significant exception in section 19 of the act. That section provides that the act shall not apply to or prohibit a minor from engaging in employment in a business owned or operated by the parent or guardian of the minor. The business is considered owned by the parent or guardian if the parent or guardian is "either the sole owner, partner, or stock holder in the business and shall be considered to be operated by the parent or guardian if he or she devotes substantially all of his or her working hours to the operation of the business." This is poor statutory language. Literally, it means that the exception would not apply if the business were owned by more than one dentist. On the other hand, there is no such thing as a partnership with a single partner. The statutory interpretation of this language must be left for another day.

A violation of this section of the Youth Employment Standards Act is a misdemeanor punishable by imprisonment for not more than one year, or a fine of not more than $500, or both.

From the civil law perspective, the employer is subject to the workers' compensation law and the exclusive remedy set forth under that statutory scheme, and cannot be liable for common law negligence. There is, however, a "penalty" under the workers' compensation statute relative to violations of the Youth Employment Standards Act. The penalty establishes double compensation against an employer for failing to comply with the Youth Employment Standards Act.

Except with respect to the exemption relative to a dentist employing his/her minor child, a dentist should not employ a person under 18 years of age to perform sterilization duties in the dental office without receiving a deviation from the department of labor as prescribed by the statute.

It should be understood that this particular section of the statute does not in any way preclude the employment of a minor to perform duties unrelated to the treatment of patients, such as bookkeeping and scheduling.

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