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"Beware of 'Benevolent Reasons' to Treat Older Workers Differently Amid COVID-19"

October 14, 2020

Article by Annette Idalski and Kyle Winnick on "Beware of 'Benevolent Reasons' to Treat Older Workers Differently Amid COVID-19"

Daily Report

Reprinted with permission from the October 14, 2020 edition of Daily Report © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Beware of 'Benevolent Reasons' to Treat Older Workers Differently Amid COVID-19

By Annette A. Idalski and Kyle D. Winnick | October 14, 2020

As employers bring back their workforce to office environments, they would be wise to adhere to an axiom in employment law: Altruism often puts employers at risk for legal liability. The Centers for Disease Control and Prevention, the nation’s preeminent authority on public health, has determined that certain categories of persons, including older persons, are at increased risk for severe illness from COVID-19. More specifically, the CDC has determined that the older you are, the greater the COVID-19 risk is. But before well-meaning employers act to safeguard this demographic, they should understand their legal obligations under the Age Discrimination in Employment Act and its state law equivalents.

The ADEA makes it unlawful for a covered employer to subject a covered employee (i.e., an employee 40years or older) to an adverse employment action because of age, at least in the absence of a convincing business justification (called a bona fide occupational qualification). The idea behind the ADEA is that employers cannot make assumptions about employees based on their advanced age, such as being less productive or less “innovative” due to age. This has implications for how employers bring back their workforce.

The Equal Employment Opportunity Commission—the agency that administers federal workplace laws such as the ADEA—has issued recent guidance opining that, if an employer prohibits its workers age 65 and over from reentering the workforce due to higher risk for serious illness from COVID-19, this would violate the ADEA. This is the case even if the employer is motivated by “benevolent reasons,” such as the health of the older worker(s), and not animus toward them.

But the EEOC’s guidance should not be read too broadly. For example, employers can allow its older workforce to work remotely—it just cannot require them to do so, if it is not requiring its younger employees to work remotely. The EEOC also has clarified that employers may subject employees to temperature checks, mandate that they stay home if they show symptoms of COVID-19 (e.g., fever or coughing), administerCOVID-19 tests, require returning employees to submit a doctor’s note certifying their fitness for duty and otherwise follow CDC guidance, so long as employers are not treating older employees less favorably than younger employees.

In fact, under the ADEA, employers may treat older workers more favorably than younger workers. (Although this may violate state anti-discrimination law.) Therefore, if an employer affords older workers the option to work remotely but does not afford this option to younger workers, this would likely not violate the ADEA.

The new EEOC guidance also clarified that merely being at a higher risk for severe illness from COVID-19, such as being older, does not necessarily trigger the protections of the Americans with Disabilities Act. The EEOC confirmed that the ADA only requires employers to accommodate an employee with a disability. Of course, nothing in either the ADEA or ADA prevents employers from engaging with its workforce to find flexible solutions to accommodate nondisabled workers’ needs during this time.

The upshot of the EEOC’s guidance is that employers can (and should) follow CDC, state and local health guidance on how to reintegrate their workforces safely. But employers still need to be wary about treating employees differently based on a protected trait, such as age. If in doubt, employers should retain employment counsel to ensure that their return-to-work plans are compliant with the law.

Annette A. Idalski is the national chair of Chamberlain Hrdlicka’s Labor & Employment Group in Atlanta. Kyle D. Winnick is an associate in the practice.