June 15, 2020
By Mark A. Fahleson , Tara Tesmer Paulson , Jennifer L. Ralph
The Center for Disease Control and Prevention (“CDC”) has indicated that people 65 years of age and older are at high risk for severe illness from COVID-19. In fact, it reports that 8 out of 10 deaths in the U.S. have been adults 65 years of age and older. The CDC has also indicated that individuals with certain underlying medical conditions may be at higher risk for severe illness from COVID-19. Thus, employers may be looking for ways to protect these workers in particular as they return to work.
The Equal Employment Opportunity Commission’s (“EEOC”) position is that equal employment opportunity laws “do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities” as they pertain to the COVID-19 pandemic. However, while the CDC guidelines may prompt some employers to implement policies to protect workers at a higher risk for illness from COVID-19, employers must still be cognizant of the requirements of the Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA”).
The Age Discrimination in Employment Act (“ADEA”) prohibits employers from discriminating against individuals who are age 40 and older. Therefore, its protections apply to workers 65 and older who are at high risk for severe illness from COVID-19. According to guidance recently issued by the EEOC, the ADEA prohibits employers from involuntarily excluding workers from the workplace because they are 65 or older, even if done to protect those employees from COVID-19. Similarly, employers may not unilaterally postpone the start date or withdraw job offers from workers 65 or older based on the CDC’s guidance that they are at greater risk for severe illness from COVID-19. However, the EEOC offered helpful information to employers interested in protecting such workers, stating that the ADEA does not prohibit employers from providing flexibility to workers who are 65 and older, even if it results in younger workers being treated less favorably based on age. Therefore, employers may choose to allow telework or offer postponed start dates to such workers.
Some employers may also wish to prepare for accommodations that employees with underlying medical conditions may need upon returning to work. In that regard, the EEOC has stated the ADA “permits employers to make information available in advance to all employees about who to contact – if they wish- to request accommodation for a disability that they may need upon return to the workplace”. Further, the EEOC has indicated that the notice may include the CDC-listed medical conditions that may place people at a higher risk of serious illness if they contract COVID-19 and explain that the employer is willing to consider requests for accommodations or flexibilities on a case-by-case basis from those employees or employees who have other medical conditions. This approach allows employers to begin engaging in the interactive process with employees who request accommodations. The EEOC has noted that this approach is consistent with both the ADEA, the ADA and CDC guidelines.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with their attorney.
