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COVID-19 NO EXCUSE FOR AGE BIAS SAYS THE EEOC

June 18, 2020

As employers prepare to reopen after being closed due to the COVID-19 pandemic, some may feel inclined to give vulnerable workers special accommodations. However, new reports from the U.S. Equal Employment Opportunity Commission states that even accommodations made with good intentions violate the age bias law if older employees are singled out.

The report issued on Thursday by the EEOC states that employers cannot involuntarily exclude people over 65 who wish to return to work according to the Age Discrimination in Employment Act, a law that protects workers over 40 from work-related age discrimination.

Even before the EEOC’s warning, the issue regarding age bias towards returning employees over 65 years old was one that attorneys said would be difficult for businesses to deal with as they reopened due to their elevated risk levels. The CDC (Centers for Disease Control and Prevention) identified this age group as the most at-risk for Covid-19.

"It's important for employers to be aware potentially of the vulnerability of that population, but not to specifically make decisions just based on somebody's age," says Kristen Gallagher, an associate at McDonald Carano LLP. "I think a lot of people are being really mindful that, even though things are opening up, the virus hasn't all of a sudden gone away and [they]still need to be protective of those particular groups."

EEOC Warns Store Owners

When saying that workers cannot be forced to stay home because of their age, the EEOC stated that this applies even when done for  “benevolent reasons", like trying to protect those who are in the high-risk category.

That doesn’t mean store owners can ignore the rights of the elderly, however. The EEOC made it clear that businesses are still "free to provide flexibility" to employees who are high-risk. The report also states the age description act doesn't prevent improving flexibility even if it results in workers around the age 40-64 getting  "treated less favorably based on age in comparison."

That being said, the EEOC did state that the ADEA doesn't require employers to provide older workers with accommodations based on their age. While the Americans with Disabilities Act does require employers to make sure workers with disabilities or illnesses are properly accommodated, it doesn't contain a reasonable accommodation requirement based on age.

"If someone is older but otherwise doesn't have any sort of disability and cannot meet the criteria for the ADA or any state or local equivalent, there is no obligation to reasonably accommodate," Gregory Abrams said, a partner at Faegre Drinker Biddle & Reath LLP. "That said, I can understand [if] employers would want to do that."

But on a broader scale, Abrams said businesses should set "clear policies regarding returning to work and what kind of precautions the employer will be taking" including a way for employees to express their own personal concerns, adding that it's "risky if employers are singling out certain types of workers for reasons that are not purely job-based."

When creating return-to-work plans, Lauren Goetzl of Fisher Phillips said employers "need to be cautious" that the plans are equal for all ages.

"The tendency obviously is to try to protect employees, but employers really need to try to formulate policies that don't take age into consideration," she said.

‘Across the Board’ Procedures - Beware

One way employers could potentially violate the age discrimination rules is creating policies that have unequal requirements, requirements imposed on older employees but not their younger counterparts, according to attorneys.

For example, if an employer requires those over 65 to wear a mask or work from home, but doesn't require the same for younger employees, it could be viewed as violating age discrimination rules under the ADEA, says Katie Erno, a lawyer in Crowell & Moring LLP's labor and employment practice.

"[It’s] a real concern," Erno says, "It's a balance between accommodating employees who come forward and say, 'I'm concerned about this,' versus creating policies even if they're well-intentioned that could be considered discriminatory."

Matthew Damm, a lawyer for Fenwick & West LLP’s litigation department, whose expertise is on labor and employment law issues, also believes that the biggest issue with workers returning "is going to be employers making across-the-board decisions" that are the same for employees of all ages.

He stated that it would be "impermissible" if employers state all employees "can come back to the office and work as part of a team but employees that are 65 or older are required to continue to telework even if they don't want to," demonstrating how across-the-board policies work.

Instead, in terms of telework, Damm said if employers want to offer the telework option after allowing employers to return to the physical location they must do so "on a completely neutral basis," with the thought that certain age groups  "will be more likely to take advantage" of the offer.

"You're not necessarily identifying those people as the beneficiaries of your telecommuting program," he said, "But when you're putting it on the table as an option — not a requirement, but an option — I think that's the best way to incentivize people that are in higher-risk categories to take advantage of those accommodations without necessarily making it the centerpiece of your policies."

Remember Flexibility

While telework can’t be forced on older workers, it can be an option for those who are nervous to return to work. But many jobs —such as hosts, servers, and cashiers — must be done in person. This means employers will have to get creative if an older employee expresses concerns about returning.

Though there are no obligations on the employers' part, legally speaking, to provide workers a reasonable accommodations simply on the basis of age, Erno said she's been advising clients that "it's very prudent to do so" if an employee over 65 expresses concerns about contracting the virus, saying that "employers want to be flexible."

Some precautions that businesses might put in place to help older workers include minimizing a person's contact with others by adjusting their shifts or work schedules, moving their workstations to a low-traffic area, or providing them with additional protective gear, she said.

"All of those are things to consider and to talk through with the employee," Erno said. "That way the employer is showing a good faith that they are working with them to address whatever the concern is."

Gallagher also stated that employers should consider whether or not paid leave applies to employees who are unable to return to work right away.

"You certainly need to be making sure that you're looking at whether or not there's any opportunities for paid leave under the [Emergency Paid Sick Leave Act], which is a relatively new act under the Families First Coronavirus Response Act," Gallagher said. "So, there may be an opportunity depending on if that vulnerable person, if maybe they have some symptoms and are seeking a diagnosis ... for some paid sick leave under that act. The biggest thing I would tell employers is just to have that open dialogue with people."

Work With Employees

Aside from tawdry policies, employers reaching out to older or at-risk employees and pushing the thought of accommodations can also land them in legal trouble. Since it could be taken as unfairly targeting that age group, it can get you in trouble in the form of a bias claim.

It still is, however, important for employers to gauge how comfortable employees are with returning. Employers can place themselves on sturdier legal ground by reaching out to all employees of all age groups to gauge where they are in terms of returning to work as opposed to just asking those in the higher-risk categories, attorneys say.

"One thing that we've seen employers do is send out a kind of survey to all employees — again, you don't want to be singling people out because of their age," Erno said.

Employers can keep the survey anonymous as a "good, neutral way" for businesses to determine how ready employees are to return, and whether or not there are any mental or physical health concerns such as child care issues or the fear of exposing other family members, Erno says.

"So, you can send a neutral survey with a whole bunch of questions to everybody to try to assess the problems that you're going to have in terms of safely bringing back the workforce" and then "speak and engage" with all those who express concerns, Erno said.

Other Factors to Consider

Though the ADEA is aimed at adults over 40, certain cities and states are creating laws that apply the ADEA to all working adults, creating a larger group of people who can file an age-bias claim.

Goetzl stated that under the ADEA, employers are allowed to offer those over 65 telecommunication opportunities even if it unfairly favors them. But if employers have operations in certain jurisdictions where age bias protections are more far reaching, they could be exposed to legal risk if those state statutes aren't taken into account as part of their virus response plan.

She also said that employers need to "remember ... that state and local laws may provide additional protections" that go further than federal law.

"For example, state and city laws in New York as well as [laws] in [Washington, D.C.,] both actually protect employees who are over the age of 18," she said. "So you could not engage in ... activities favoring older employees in those jurisdictions without potentially exposing yourself to some liability."

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