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COVID-19 and the Age Discrimination in Employment Act

Employers: during a pandemic that appears to hit patients over 65 years and older the hardest, are you taking the appropriate steps to ensure that you do not discriminate against your older employees, while also protecting them from potential workplace harassment?

COVID-19 is a new disease and there is limited information regarding risk factors for contracting the disease and experiencing severe complications.  However, the Centers for Disease Control (CDC) has advised that, based on currently available information and clinical expertise, people 65 years and older might be at higher risk for severe illness from COVID-19.  As such, employers with older workers should be prepared to address concerns specific to older workers.

The Equal Employment Opportunity Commission (EEOC) has recently issued guidance on federal anti-discrimination laws and COVID-19.  However, most of this guidance is related to the Americans with Disabilities Act (ADA), which is to be expected because COVID-19 certainly raises a variety of medical issues in the workplace.  As a result, employers are likely aware of the implications of the Americans with Disability Act.  But, employers should be aware that COVID-19 could also implicate age discrimination issues, understand their obligations under the Age Discrimination in Employment Act (ADEA) and take steps to ensure a workplace free of unlawful discrimination.

Overview of Age Discrimination in Employment Act

The ADEA protects applicants and employees who are 40 years of age or older from employment discrimination based on age.  The ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government.

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.  Harassing an older worker because of age is also prohibited.  It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

Accommodating Older Employees

Many employers will likely receive requests from older employees for permission to telework and/or for a grant of additional leave where older employees may consider themselves to be in an “at risk” group.  The EEOC has issued guidance clarifying that employers do not need to accommodate an older employee even if the employee is scared of coming into the workplace and contracting COVID-19 because he or she is older.  Unlike the ADA, the ADEA does not require employers to provide reasonable accommodations.  As such, employers have no legal obligation to allow older employees to telework or to take leave, unless the employee has an underlying condition which could be considered a disability under the ADA.  Of course, as with all workplace policies, employers must not discriminate against older employees.  If an employer is allowing other employees to take leave and/or telework due to fear of contracting COVID-19, the employer should ensure that it is not denying older employees the opportunity to do so, thereby treating them adversely due to age-related reasons.

On the other hand, some employers may feel compelled to protect older workers and place them on involuntary leave, mandate telework or require older employees to undergo testing or engage in other safety precautions that are not required of other employees in order to return to the workplace.  Employers should refrain from doing so – as the ADEA prevents employers from discriminating against older employees in the absence of a “bona fide occupational qualification.” In other words, a blanket policy that prohibits employees over a certain age from working in the workplace would be unlawful; likewise, requiring older workers to be subject to additional testing or safety precautions would run afoul of the ADEA.  To be clear, though, a policy that allows older workers the option to voluntarily stay home or provides older workers with priority to telework would not be illegal under the ADEA.  The ADEA permits employers to favor older workers based on age, even when doing so adversely affects a younger worker who is 40 or older.

Preventing Harassment

While the EEOC guidance above is clear that older workers are not entitled to COVID-19 related accommodations on the basis of their age alone, employers should take special care to ensure that such employees are not subjected to workplace harassment because of their age.  Social media trends indicate that there could be a rise in workplace harassment of older employees.

Now is a good time for an employer to remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age, disability, or genetic information.  It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination.  An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

Conclusion

Even in the midst of the COVID-19 crisis, longstanding concerns about workplace discrimination remain.  Employers should take care to comply with all state and federal anti-discrimination laws, including those related to age.