On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) updated its guidelines to state that the Age Discrimination in Employment Act (ADEA) "would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her [age] being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19." Thus, as employers implement new Return-to-Work policies and guidelines to protect against COVID-19, they must be sure not to specifically make decisions based on age.
The Centers for Disease Control and Prevention (CDC) has identified individuals 65 and older as being at higher risk for developing more serious complications from COVID-19 illness, but employers must be mindful about balancing the needs of older workers in ways that do not also single them out based on age. As such, providing neutral policies and practices is key. Employers should ensure that their policies do not place different requirements on older workers that aren't also imposed on their younger coworkers. For example, instead of only surveying older worker's regarding their concerns on returning to work, businesses should reach out to all of their workers. Employers may also consider offering telework such that employees of all age groups have the option, or requiring all employees, not just older ones, to wear masks and conduct temperature checks.
Nevertheless, while older workers cannot be forced to stay at home due to their age, the EEOC noted that there is also no obligation for employers to provide a reasonable accommodation to workers based on their age. In fact, the Americans with Disabilities Act (ADA), which instructs employers to explore reasonable accommodations based on an employee's disability or certain medical conditions, also does not contain a reasonable accommodation requirement based on age. However, the EEOC explained that employers are free to provide flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. Thus, while employers can offer older workers options that may treat younger workers less favorably, employers should attempt to apply these situations as equitably as possible. In addition, employers should double check state and local laws, which may provide additional protections to a broader age group.
Even so, remaining flexible is important. By considering and discussing different options with their employees, employers are showing a good faith effort to address their concerns. For instance, business that cannot provide teleworking options for their older workers may consider implementing the following precautions: minimizing a person's contact with others by adjusting their shifts or work schedules, moving their workstations to a low-traffic area, or providing them with additional protective gear. In addition, employers should be aware of any paid leave laws that may apply to workers unable to immediately return to work. Overall, businesses should set clear age-neutral polices and implement practices that allow employees to express concerns about their own situations.
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