We know SARS-CoV-2 (the virus that causes COVID-19) doesn’t discriminate, but that doesn’t mean employers have stopped doing it. In fact, the novel coronavirus that seems to have brought us all to a screeching halt is illuminating even more cases of age discrimination – and in some cases, it’s helping employers eliminate older workers as well as making discrimination harder to prove.
Of course, age discrimination is illegal in the U.S.; that’s codified in 6 major employment laws. But that doesn’t keep employees from falling victim to it. And while we’ve seen a rise in infection rates across all age categories, age does appear to be a factor when it comes to severity. Even those in their 40s are 3 times more likely to be hospitalized due to the disease and 10 times more likely to die from its complications compared to those in the 18-29 age bracket. Those aged 65-74 are 90x more likely to die if infected.
This has employers genuinely asking if it’s ethical to keep older workers around. But it also provides a benevolent veil behind which they can push older, higher-earning workers out of their companies or sideline them to lower-paying contract work.
Even while COVID has run rampant throughout the United States, estimates indicate that the number of Americans aged 65 and older will still increase over the next few decades by at least 10%.
And with age discrimination already a problem, newly shrinking budgets, fear over putting workers in danger, and a genuine need for those 65+ to protect themselves while staying employed, things will only become more complex when it comes to identifying age discrimination in the workplace.
The fine line between “protection” and discrimination
Employers will be tempted to use the pandemic to eliminate or scale back the highest-paid members of their workforces. The financial damage companies have suffered will often be the catalyst for these types of cost-cutting measures, though we have seen some companies simply undervalue their older workers by assuming they’re less capable. This means we must all be vigilant about making sure that the pandemic doesn’t allow employers to fire or furlough older workers who they assume might cost them more money because they belong to a “vulnerable” group.
Employers cannot make decisions that single out older employees, regardless of the reasoning. Even if a manager believes they are doing the right thing by furloughing a 60-year-old worker in order to reduce their chances of catching the virus, they are breaking the law.
Companies that substantially alter the duties of older workers to keep them away from the general public, furlough them while allowing younger workers back in the office, or mandate protective equipment for only certain employees can all be challenged in court under the ADEA. Even urging older workers to stay home while allowing younger ones access to the workplace is a potential violation. The most that employers subject to these laws are allowed to do is offer more flexible arrangements to older workers – taking advantage of them is up to the employee.
Sidelining workers is one thing, but we’re sure to see a flurry of lawsuits from older workers who were laid off during the pandemic. Employers have used the pandemic as an opportunity to purge their companies of the highest-paid workers, as well as those who they think will drive up insurance premiums if they get sick, or people who they assume will request more paid time off because of the pandemic.
There have already been hundreds of COVID-related age discrimination cases filed with the EEOC. Many of these describe situations in which older employees have been laid off only to be replaced by someone younger. Stephen Console of Console Mattiacci Law in Philadelphia has filed roughly 30 age and disability discrimination cases since the pandemic started. He told the ABA Journal that he’s seen clients laid off due to COVID only to find out “the kid they trained for two years still has a job.”
The question is what criteria they’re using to say who stays and who goes, he explained.
Louis DiLorenzo, head of the labor and employment practice for Bond Schoeneck & King in New York says “We haven’t seen as many lawsuits yet as we are likely to see.”
When the dust settles and we see the full complement of people not coming back, then lawsuits will be brought and there will be analyses of their ages, sex, disabilities and race, he continued.
It is, however, important to keep in mind which laws apply to you. Anti-discrimination laws apply to all government employers. But when it comes to private companies, some only apply to those of a certain size – usually ones with over 15 or 20 workers (such as the ADA, ADEA, the Genetic Nondiscrimination Act, and the Equal Opportunity in Employment Act, though states may alter the conditions of the latter). State and local laws may also provide employees with additional protections. But despite laws largely covering workers over the age of 40 from unfair treatment, violations are still hard to prove.
What to watch out for
Make no mistake, the flurry of guidelines issued is a good indication that the EEOC is on the lookout for cases in which older employees have experienced discrimination.
Lawyers are making sure employees know what to look out for when their employment status changes. They’ve warned that claiming an employee is at “high risk for COVID” is often a proxy for age discrimination. And there are other red flags to watch out for. Companies that identify “highly compensated” workers are raising suspicions as well.
When companies do lay off older workers, they need to be sure those aren’t the only workers being targeted. Layoffs to reduce cost aren’t illegal if they’re made across the board. However, when a company retains its younger (and cheaper) talent or hires younger workers after laying off older ones, that’s a sign that age played a role in their decision.
Even if an older employee is a poor performer, companies need to have proof of this before replacing them with younger talent. A history of performance reviews, for example, can serve as evidence of a problem, but only if it’s properly documented.
Rights and responsibilities in the age of COVID-19
In the U.S., employers are required to provide a workplace free of known health and safety hazards. There are industry-specific safety standards and regulations they must abide by as well. But none of this was written with a pandemic in mind. That means we’re now depending on new guidelines to see us through – and these may or may not hold up in court.
For the most part, the Occupational Health and Safety Administration (OSHA) is working to inform both employers and employees of their rights and responsibilities. But many of these guidelines are mere “best practices” still open to interpretation, or can even differ by state.
Guidelines about protecting workers “who may be at increased susceptibility” for the virus opens up older employees to paternalistic practices whereby employers can sideline them “for their own safety.” However, it’s important for employees to remember that none of these guidelines overrides an employee’s rights under the Americans with Disabilities Act (ADA), the Rehabilitation Act, or the Age Discrimination in Employment Act (ADEA).
The most important thing to remember is that while employers should implement infection prevention and control measures, these cannot be applied in different ways to different groups of employees. Accommodations can be made for eligible workers under the ADA and the Rehabilitation Act, and the CDC has encouraged employers to provide maximum flexibility to workers at higher risk for severe cases of COVID-19 (generally defined as those 65 and older). The ADEA, however, does not actually include a right to reasonable accommodation for older workers due to age. But when accommodations are made, it allows employers to make them for specific age groups, even if it results in younger workers being treated less favorably. In other words, you can take steps to protect older employees if they request it.
One thing businesses covered by these federal employment laws cannot do is prevent only employees 65 and older from going into the workplace, regardless of benevolent intent. Unfortunately, older employees also can’t refuse to return to work because they’re afraid of catching the virus in cases where no flexibility is available. For example, it’s hard to see how a grocery store employee or restaurant worker might arrange to have their duties altered so that they can work from home.
And there’s the rub. Among men ages 62 and older, the five most common occupations are delivery workers and truck drivers, janitors and building cleaners, farmers and ranchers, postsecondary teachers, and lawyers. Among women ages 62 and older, the five most common occupations are non-postsecondary teachers (i.e., preschool, kindergarten, elementary, middle, secondary, and special education teachers), administrative assistants, personal care aides, registered nurses, and child care workers. Most of these jobs don’t lend themselves to telework and often require close interaction with other people.
To top it off, older workers find it more difficult to re-enter the workforce after being unemployed for an extended period of time and many seniors are now “long-term unemployed” – meaning they’ve been out of a job at least six months – due to the pandemic. Half of jobless workers over age 55 were long-term unemployed in January, according to AARP.
What employers can ask and mandate
Now that widespread testing is available, PPE is no longer scarce, and vaccination is underway, new questions have arisen as to what employers can reasonably expect from employees in the workplace in terms of their COVID-19 risks and responsibilities.
We’ve noted that employers cannot mandate work-from-home arrangements for a specific age group. But they can invite employees to request this flexibility, and the ADA and Rehabilitation Act permits employers to make this information available for those with a disability or who are at higher risk of illness. They just have to make their guidelines available and open to all age groups. According to the new EEOC guidelines:
Workers age 65 and 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.
Employers are prohibited under the Genetic Information Nondiscrimination Act (GINA) from asking employees coming into the workplace medical questions about family members. That means they’re not entitled to information about whether an employee physically entering the workplace has a family member with COVID-19 or associated symptoms.
But when it comes to employees themselves, those who enter the workplace can have testing mandated as part of their initial or continued presence.
The EEOC has acknowledged that COVID-19 meets the ADA’s “direct threat standard,” which permits more extensive medical inquiries and controls in the workplace than normal. This acknowledges that having an employee with COVID-19 in the workplace poses a “significant risk of substantial harm” to others, allowing employers to implement medical testing and other screening measures the ADA would normally prohibit. Under this same finding, employers may also administer temperature checks, mandate that employees stay home if they show symptoms of COVID-19, and require returning employees to have a doctor certify their fitness to safely return to work – but only if they implement the same rules for employees of all ages.
The key to implementing these strategies is abiding by a legal concept called “disparate impact.” A policy may appear to be nondiscriminatory, but if it still has a disproportionate impact on a class of people who enjoy protection under the law, it is likely illegal.
Legal experts agree that the EEOC guidelines also allow employers to mandate that employees be vaccinated against COVID-19 in most cases. Employers have implemented mandatory vaccination in the past, especially among healthcare workers. But any mandatory program technically still has to take into account religious accommodation requests under Title VII of the Civil Rights Act of 1964 and medical accommodation requests under the ADA. What remains to be seen is whether or not an employer may deny an accommodation request if it poses an “undue hardship.” That will likely be determined in the courts.
Of course, not everyone is currently eligible for a vaccine. This creates a gray area when it comes to mandating vaccines for anyone eligible since states are currently prioritizing by age group. It remains to be seen whether or not mandating vaccines among those eligible would be considered age discrimination since most younger workers will not have access right away.
Protecting older workers from both COVID-19 and age discrimination
The COVID-19 pandemic has negatively impacted the employment and long-term financial stability of older people around the world. Even by April and May of 2020, workers aged 65 and older had higher unemployment rates than they did during previous recessions. According to the Bureau of Labor Statistics, nearly 900,000 Americans between the ages of 60 and 69 lost their jobs between December 2019 and December 2020 – and to top it off, previous research has shown that long before COVID was around, people who experienced unemployment in their late 50s and early 60s faced negative health outcomes in the long run.
In the past, they were protected by seniority for the most part, but higher COVID-19 risks muddy the waters. Companies are certainly allowed to cut costs based on seniority and salary which does tend to affect older workers more, but that policy has to be clear, well-reasoned, and applied fairly across the board so as not to raise questions about making age a direct contributing factor.
Still, we can expect to see even the most well-laid plans challenged in court when they predominantly affect workers over 40.
“Age Discrimination: State Law,” (WorkplaceFairness.org)
“Ageism and COVID-19,” (American Psychological Association, 2020)
“Signs That A Layoff in the Age of COVID-19 Might Really Be Age Discrimination,” (Freking, Myers, & Reul, 2020)
“Age Discrimination and COVID-19: What to Do When Employees Are in High-Risk Groups,” (The National Law Review, 2020)
“Age Discrimination And Covid-19: What Are The Rights Of Older Employees?” (Forbes.com, 2020)
“COVID-19 Deals a Dual Threat to Older Workers,” (SHRM, 2020)