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New guidance recently issued by the Equal Employment Opportunity Commission (EEOC) advises that employers who preclude employees over the age of 65 from returning to work may be in violation of the Age Discrimination In Employment Act (ADEA), a law aimed at protecting workers over 40 from job-related discrimination. This guidance comes as part of a technical assistance document posted to the EEOC website answering questions about various pandemic related issues that deal with returning to work.

Under its guidance, the EEOC warns that, even if they mean well, an employer may not involuntarily exclude a worker from the workplace based strictly on age. Under the ADEA, however, an employer is free to offer flexibility to employees over the age of 65. This type of action is not prohibited under the ADEA, even if it results in younger workers being treated less favorably. However, employers should be mindful of more restrictive state statutes that may be in place covering a broader age group not covered by the ADEA.

Employers are sure to draw the attention of the EEOC if they choose to implement return-to-work policies placing restrictions on older age groups that do not apply to younger workers, even if intended for their protection. For example, an employer may not, despite Center for Disease Control guidelines regarding higher risk age groups, require employees over the age of 65 to wear masks while others are not required to do so. Similarly, an employer cannot require workers over the age of 65 to telecommute while others may come and go from the office as they please. The common-sense approach recommended by the EEOC is to implement neutral policies that apply across the board to all employees without taking age into consideration.

While it is important for workplace policy to be neutral and not age specific, it remains important for employers to be considerate of the needs of its individual employees and to be “flexible” when able as suggested by the guidelines. Although there is no requirement under the ADEA to provide a reasonable accommodation on the basis of age alone, in some cases, it may be prudent to consider one when an employee expresses concerns about contraction of COVID-19, particularly if providing one is not a major inconvenience to workplace operations. In addition, employers should keep in mind that employees age 65 and older may have medical conditions that bring them under the protection of the American’s With Disabilities Act (ADA) as individuals with disabilities. As such, those employees may request a reasonable accommodation for their disability as opposed to their age. Sitting down with an employee to address his or her concerns can go a long way to demonstrate a good faith effort by employers to promote workplace health and safety.

Flexibility should also be considered when implementing policies. While some employers may have traditionally required a physical presence at work, for example, those concerned with the health of older employees may want to consider making telecommuting an option for all employees without singling out any particular age group. In that circumstance, employees about whom employers may be most concerned would be able to exercise that option to take advantage of these added precautions.

Regardless of what policies they choose to implement, employers should be mindful of the ever-changing workplace that COVID-19 presents and its implications on age discrimination issues. Employers are always best served by remaining current on routinely updated EEOC guidelines, by making sure they understand their obligations under the ADEA and by taking steps to ensure a workplace free from unlawful discrimination.

If you have questions about how the EEOC's guidance might affect your workplace, please contact Christopher J. Carlos.

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