We have all seen the data: Eighty percent of the people who have died of COVID-19 in the United States have been 65 or older. While these numbers may reflect a large number of older people who were living in nursing homes, the odds of an older worker (ages 55 to 75) ending up in intensive care or dying of COVID-19 are significantly higher than for a worker under 55. It is not surprising that employers and employees are taking these statistics into consideration as more and more companies open back up for business.
Can you consider a worker’s age when deciding whether or not to call him back from a furlough? You are about to reopen one of your small manufacturing facilities, which you had closed down in late March. Business remains slow, but you have enough work to bring back some of your furloughed employees. Recognizing the number of new cases continues to rise, you decide not to call back any worker over the age of 60, since they seem to be at the highest risk of getting very sick from COVID-19. Is that legal?
Notwithstanding your good intentions, your employees would have a strong claim of age discrimination under the Age Discrimination in Employment Act (ADEA), if you based your decision not to bring them back on their age. In updated technical guidance addressing pandemic-related issues, the U.S. Equal Employment Opportunity Commission (“EEOC”) states in no uncertain terms that employers may not involuntarily exclude employees from the workplace due to COVID-19, even if the decision to exclude was for benevolent reasons, such as protecting employees who are subject to higher risk of severe illness from COVID-19.
The EEOC’s position is consistent with the Supreme Court’s decision nearly thirty years ago with respect to an the employer had instituted a policy that prohibited women capable of bearing children from working in jobs involving lead exposure. Notwithstanding the employer’s seemingly good intentions, the Court concluded that this type of classification was discriminatory because the employer could not demonstrate that this was a Bona Fide Occupational Qualification.
Similarly, as long as older workers can still perform the job, they cannot be excluded from the workplace simply because their age makes them more at risk for the adverse effects of COVID-19.
Can we at least require older workers to wear a face mask and follow stricter distancing rules if they come back to work? Considering that most experts believe that face masks are more effective at protecting other people from the mask wearer than the mask wearer from others, only requiring your older workers to wear face masks may not make much sense. It would also be discriminatory on its face. Social distancing and face mask policies should instead be applied consistently across the board to all employees.
What if older employees do not want to return to work because they believe their age increases their risk of severe COVID-19 illness? This is different from the first situation in that it is the employee — not the employer — that is raising the concern about returning to work. An employer may consider asking all of its employees whether they have any concerns about returning to work when it asks them to return. Ultimately, if an older employee voluntarily decides not to return to work in response to this blanket communication, then the employer would not be discriminating against the employee by accommodating the employee’s request. The key here is that the employee needs to make the decision. The downside to the employee making the decision not to return — as opposed to the employer not bringing him back — is that the employee could end up being disqualified for unemployment benefits by turning down the offer to return.
Do older workers have a right to any accommodations because they are more at risk of severe COVID-19 illness? Unlike the Americans with Disabilities Act (ADA), the ADEA does not require employers to reasonably accommodate employees because of their age. However, in its recent guidance, the EEOC stated that employers are free to “provide flexibility” to workers 65 or older.
Bear in mind that many older employees are also more likely to have medical conditions (e.g., diabetes) that would qualify as disabilities under the ADA, and for these conditions, the employer would have a duty to accommodate (assuming reasonable accommodations are available). However, assuming that the employee’s only risk factor is his age, an employer could “provide flexibility” by allowing the employee to telework or, if that is not possible, by restructuring the employee’s job or modifying their work schedule so that their exposure to others in the workplace is minimized. While there is no legal obligation to engage in an “interactive process” with an employee who seeks an accommodation because of age, the employer may want to solicit the employee’s input on what kind of accommodations would address the employee’s concerns.
