By: Philip J. Petrina
Amidst the country reopening following COVID-19 shutdown orders, 
employers must be cautious of (mistakenly) violating the Discrimination in Employment Act (ADEA) either directly or indirectly.
According to recent data provided by the Centers for Disease Control (CDC), COVID-19 adversely affects the health of those 65 and older more than any other demographic.
In fact, as of June 6th, the cumulative rate of COVID-19 hospitalizations among those 65 and older − per 100,000 − was 273.8 people. This rate was two times that of the next closest age group – those between 50 and 64.
As a result, many employers are worried about their older employees’ health as millions of workers across America return to work. However, it is important for employers to remember they must still comply with the ADEA. In order to avoid legal complications, employers should understand (1) what the ADEA is, (2) why it may relate to the Americans with Disabilities Act (ADA), and (3) how they can ensure their business is still in compliance.
understanding the age discrimination in employment act
The ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations, and the federal government. It protects applicants and employees who are 40 years old or older from employment age-discrimination with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. To raise an age discrimination claim, a plaintiff-employee would need to show four elements:
- They are a member of the protected class (ages 40+);
- They were subjected to an adverse employment action as a result of their age (being forced out of the office, additional medical testing, laid off, etc…)
- Substantially younger persons filled the position the plaintiff sought, was discharged from, or was prevented from performing; and
- They were qualified to do the job for which they were laid off or not hired.
If a plaintiff demonstrates the above four elements, the burden would then shift to the employer to prove a legitimate, non-discriminatory reason for the challenged employment action.
Understandably, in an effort to protect this vulnerable population, many employers may wish to place older employees on involuntary leave, mandate they work from home, furlough, layoff, or even refuse to hire such employees solely because of their risk of severe illness from COVID-19.
The unemployment rate of those older than 65 rose to 13.2% in May from 3.7% in March.
However, employers should think twice about any adverse employment decisions regarding older employees. For example, if an employer is allowing others to come into work while forcing older employees to remain out of the office, it would almost certainly be discriminatory under the ADEA, and a steep legal hurdle to overcome for employers. It is also important to note that 8 in 10 employees over 65 do not even have jobs capable of being completed via telework.
how does this relate to the Americans with disabilities act (ADA)?
Many older individuals also have a number of pre-existing conditions, comorbidities, and other disabilities as a result of their age. Similar to the ADEA, it is illegal for employers to discriminate against an individual because of their disabilities under the ADA. However, the Equal Employment Opportunity Commission (EEOC) noted one key difference between the two Acts in their additional COVID-19 guidance that employers must understand:
Under the ADA, an employee has a right to request a reasonable accommodation if an employee has a known disability, and an employer must respect such accommodation. On the other hand, the ADEA does not include a right to reasonable accommodation for older workers due to their age. Thus, employers may offer voluntary accommodations to older employees under the ADEA, but they are not obligated by law to do so. Additionally, this means employers may offer older employees options to work remotely, even if they do not offer the same options to younger workers.
How to ensure compliance with the adea
If you are reopening your business − and allowing younger employees to return to work − you cannot require older employees to work remotely, impose additional restrictions or tests upon them, or furlough or layoff on account of their age. As an employer, you may certainly offer flexibility in the interest of their health, but such accommodations cannot be mandatory. Subsequently, an older employer cannot request a mandatory accommodation under the ADEA, and may only do so if they have a qualifying disability under the ADA.
In sum, do not force older employees to stay at home if they decide to come into work. This would violate the ADEA and may lead to civil litigation. It is encouraged that we all respect the older population during this difficult time. To do so we must offer them the flexibility and choices they rightfully deserve.
Phil Petrina, at the time of this post, is a rising 2L of Penn State Dickinson Law, a member of the Class of 2022. Phil is interested in corporate business law, healthcare law, and litigation. He is a Class Representative to the Student Bar Association and a Pennsylvania Commonwealth Scholar. Phil can be contacted at pjp5327@psu.edu.
Sources:
https://www.ohioemployerlawblog.com/2020/06/coronavirus-update-6112020-covid-19-is.html
https://www.jdsupra.com/legalnews/covid-19-and-the-age-discrimination-in-81865/
https://www.govinfo.gov/content/pkg/USCODE-2011-title29/html/USCODE-2011-title29-chap14.htm
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html
https://www.longofirm.com/how-to-prove-age-discrimination-in-the-workplace/
https://www.ada.gov/cguide.htm
Photo Sources:
https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission
