Employers have had to make difficult decisions in the past couple months, and older workers seem to be a primary target for reduction in workforce.  Before the economic shutdowns, the unemployment rate for those 55 and older was around 3.5%.  Now it is 13.6%.  Women over 55 are higher at 15.5%.

So why would employers be targeting older employees?  The pandemic has provided employers an opportunity to reassess their structures and operations as well as the rightsizing of their workforce.  For some employers, there is now an opportunity to lay off older employees because they have higher salaries, and the future of the business may not be able to support the current salary/compensation structure. Employers could be looking at other costs such as insurance or paid time off, and older workers have been shown to have susceptibility to COVID-19. The majority of deaths attributable to COVID-19 are of the age group of 55 and older.  Further, if the workplace is in transition to remote work because of the pandemic, some employers might think that that older employees are less likely to function well in a virtual/remote work setting that requires more significant technological skills.

With technology changing fast and operations becoming more efficient, the need for the ‘knowledge fund’ that older workers brought to the table is not as urgent or necessary.

The Age in Employment Discrimination Act (ADEA) protects employees (and possibly applicants depending on the jurisdiction) 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, among others.  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. Employers should not be informally encouraging older workers to “retire” if they are eligible to do so. 

If an employer starts returning employees to work, older employees may hesitate and state that they are an “at risk” group, and rightly so.  However, 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. Unlike the American with Disabilities Act (ADA), the ADEA does not require employers to provide reasonable accommodations.

The ADEA would be violated if an employer had a uniform policy that prohibits employees over a certain age from working in the workplace or requiring older workers to be subject to additional testing or safety precautions because of the pandemic.  Yet a policy that allows older workers the option to voluntarily stay home or provides older workers with priority to telework would not be illegal, because the ADEA permits employers to favor older workers based on age, even when doing so adversely affects a younger worker who is under 40 years of age.

On the other hand, if the employee has an underlying condition besides age that would fall under the ADA and he/she requests an accommodation, ADA requirements must be met.  The employer must undertake an interactive dialogue with the employee as to possible accommodations.  The employer ultimately would decide on the accommodation. 

An employer who says the situation may be a direct threat to the employee and not allow the employee back to work regardless of any accommodation at the workplace has a high hurdle to overcome.  The EEOC in their guidance specifically states:

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health, and cannot rely on the underlying condition solely that makes the employee vulnerable.  The employer must have proof that it really is a threat, not a presumed one.

Finally, employers have to watch out for harassment of the older worker because of the pandemic situation and vulnerabilities.  Training of managers and employees are highly recommended to maintain a respectful workplace.   As a takeaway, HR should work with legal counsel on rightsizing the workforce or implementing new workplace policies.  Employees should not be simply replaced with a younger worker because that worker may be less likely to get sick or fit within the new compensation structure.