Our way of life has been impacted in ways we never imagined or anticipated. COVID-19 has created an economic crisis unparalleled in modern history, especially in the workplace. The CDC says that both older people and those of any age with underlying health conditions are at greater risk for developing severe cases of COVID-19. At the same time, existing federal and state labor laws must be followed. So how do employers keep employees safe without taking discriminatory action in the workplace.
To start, don’t assume because someone is age 55-ish that they will refuse to return to work or will request special accommodations. As I mentioned in previous blogs, asking all employees to wear a mask at work is a sign of respect and should be a condition of employment, not an accommodation. Mask donning should not be contingent on age, social, or political viewpoints. As an HR consultant, I can see that certain employers are going to use this opportunity to “layoff” older workers who have higher salaries and possibly more health concerns, as a pretext for ageism. Ageism has been a global issue even before the pandemic, so much so that the World Health Organization has a dedicated website, global strategy and action plan to promote healthy aging and combat ageism.
It is more important than ever to prevent and stop negative attitudes toward stigmatized or culturally marginalized groups – in this case older workers. Just like every other challenge presented during this pandemic, take the humanistic approach and engage in conversations with employees if they raise the need for help.
Risks Increase with Age
CDC research shows the risk of severe symptoms with COVID-19 rise with age, especially over 60 years old. For example, people in their 50s are at higher risk for severe illness than people in their 40s. Similarly, people in their 60s or 70s are, in general, at higher risk for severe illness than people in their 50s, CDC Report on Older Adults. But there are many types of risks; work risks are that older workers and their families are highly exposed to serious COVID-19 illness and unemployment risks are income loss and early retirement. Older workers in front-line occupations face particular risks and are more vulnerable to illness and to the deadly and debilitating effects of COVID-19, especially in cases with inadequate protective gear and inadequate sick leave.
Even though we all know that age discrimination is illegal in this country and protected by law, unfortunately it is still a pervasive problem in our society. The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission (EEOC) has issued updated guidance, as of 09/08/20, on how to bring employees back to the workplace safely and has warned employers they cannot prevent older workers from returning to work even if they want to protect such workers from the effects of COVID-19.
While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that's not your choice to make. Only the employee can make that choice. If you force older workers to stay away, you are almost certainly committing age discrimination. It is the employee’s health and employee’s choice. Don't make it for them. Voluntary actions, such as offering work at home, schedule changes and workplace changes such as spacing out workstations for older workers (when the stations are equivalent), practicing social distancing, would generally not violate the ADEA.
The link below also provides additional guidance regarding ADA reasonable accommodations, preventing workplace harassment in a remote work environment, and addressing other workplace discrimination concerns, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. I have included the technical Q&A section related to age in the workplace:
H.1. The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.
Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.
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.
H.2. If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age? (9/8/20; adapted from 3/27/20 Webinar Question 12)
No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.
Oldest Workers Hit Hardest
In a typical recession, the unemployment rate for older workers remains below that of their younger counterparts, but that’s not the case this time, noted Richard W. Johnson, director of the program on retirement policy at the Urban Institute. The combined rate of unemployment and underemployment for workers over 65 was 26 percent in May, roughly five points higher than for those ages 25 to 54. Tenure is no longer the measure to guarantee continued employment. According to research conducted by AARP, older workers are at risk of layoffs in times of economic uncertainty and have more difficulty getting rehired at previous wages when displaced.
Moreover, since our workplaces were not prepared for this pandemic nor the length of it, many companies now face the prospect of losing an incredible wealth of institutional knowledge as older workers retire early. Knowledge that comes from experience, not procedural manuals (if there are any), years of solving problems and learning the intricacies of that process firsthand. This knowledge transfer loss has already begun with the mass exits of baby boomers retiring. According to the Pew Research Center, an astonishing 10,000 people are expected to retire every day over the next decade as the aging baby boomer surge gets in full swing. The current pandemic has only exacerbated the brain drain.
As an HR Consultant, I have already seen discrimination and stigma building against older workers with certain myths, doubts and biases. Stigma hurts everyone by creating more fear or anger toward older people instead of focusing on the disease that is causing the problem. According to the CDC, stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame someone, fears about disease and death, and gossip that spreads rumors and myths. Reducing stigma and bridging the intergenerational gap among workers will only benefit a company. We can all learn for this global pandemic and work harder on workplace inequalities. All workers regardless of age, have a right to full employment and should not have to compete with younger workers just to keep their jobs. Remember the next time you seek medical care, especially if it is COVID-19 related, your health care provider may be one of the thousands of US retired doctors and nurses who had to return to the front lines to support our overstretched healthcare system.
As a child growing up, I remember hearing my parents tell me often to respect my elders. Looking back, I cannot thank my parents enough for their wisdom in teaching me this great advice. Let’s hope we all heed this advice, during this pandemic and beyond.
After all, we are all in this together, and how we handle challenges is how we show our character!
Carol Flynn is president of HR Solutions Inc and is a subject matter expert in sexual harassment, organizational development and workplace integration. She has over 25 years in human resource management and is a professor and educator with a Master of Arts in Industrial/Organizational Psychology; life-time certified senior professional in human resources (SPHR); certified EEOC trainer; and past investigative member of the Florida Bar Grievance Committee (FBGC). For further information, see www.hrsolutionsfl.com