Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel

The U.S. Equal Employment Opportunity Commission’s (EEOC) June 17 update of COVID-related guidelines (June 17 Update) offers first-time protocols for the management of aged 65-plus workers in pandemic times under the Age Discrimination in Employment Act (ADEA).

COVID-19’s unprecedented circumstances have led the EEOC to loosen many of its established restrictions against employer intrusions into worker illness symptoms and medical care otherwise dictated by Americans with Disabilities Act (ADA) and other anti-discrimination laws. See, Infection Protection, What Employers Can Ask in a Pandemic (March 25, 2020).

On the other hand, the agency has issued unequivocal reminders that pandemic conditions are not license for unlawful national origin or race discrimination or harassment, e.g., unequal or hostile treatment of Asian workers on the pretext that COVID-19 is a “Chinese” disease or the like.

Taking the CDC’s cue that 8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older, the EEOC’s June 17 Update reminds employers they may not exclude “older adults” from the workplace just because they are reported to be more vulnerable to the pandemic’s ill effects.

“The ADEA would prohibit a covered employer [15 or more on payroll] from involuntarily excluding an individual from the workplace based on his or her 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.”

As the ADEA only protects those aged 40-plus against discrimination relative to people younger than 40, the June 17 Update advises that ADEA does not prohibit employers from providing 65-plus employees “flexibility” to work relative to other older workers protected by the ADEA “even if it results in [those] workers ages 40-64 being treated less favorably based on age in comparison.”

The June 17 Update recognizes that no individual is entitled to reasonable accommodation due to his/her age but continues: “Workers age 65 or older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.” Emphasis supplied.

Thus best management practices should include careful attention to older worker requests to remain on or return to the job and to documenting proper deliberation and decision.

See also:

• Thinking the Unthinkable; Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)
• Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)

For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

July 24, 2020